Wetz v. Thorpe, 56128

Decision Date20 February 1974
Docket NumberNo. 56128,56128
Citation215 N.W.2d 350
PartiesFrances M. WETZ, Executor of the Estate of Grant J. Wetz, Deceased, Appellee, v. Rupert Reginal THORPE and Town of Salix, Iowa, a Corporation, Appellants.
CourtIowa Supreme Court

Gleysteen, Nelson, Harper, Kunze & Eidsmoe, Sioux City, for appellants.

Thomas L. McCullough, Sac City and Joe Cosgrove, Sioux City, for appellee.


REES, Justice.

This is an appeal from a judgment entered in an automobile negligence action brought by Frances M. Wetz, executor of the estate of her deceased husband, Grant J. Wetz, and against the Town of Salix, Iowa and Rupert Reginal Thorpe. The action arises out of an automobile accident which occurred on October 29, 1970 at the intersection of Sixth and Nebraska Streets in Sioux City. Sixth Street is a one-way street with traffic permitted to proceed westerly, and Nebraska Street is a one-way street with traffic proceeding northerly, the intersection being controlled by red and green automatic traffic signals. Wetz was traveling westerly on Sixth Street and entered the intersection on a green light when his vehicle collided with an ambulance driven by defendant Thorpe and owned by defendant Town of Salix, which ambulance was then traveling north on Nebraska Street and had entered the intersection against a red light. The siren and the red lights on the ambulance were operating at the time.

Wetz, a practicing attorney, aged 59, died as the result of injuries sustained in the accident. The action was tried to the court without a jury. The court rendered judgment in favor of plaintiff and against both defendants in the total sum of $188,662.19, together with interest from the date of the accident, and for costs. Both defendants appeal and we affirm.

It appears to be undisputed in the record that Sixth Street had three lanes for westbound traffic and that parking of cars was allowed on either side thereof in addition to the traffic lanes, and that Nebraska Street was a one-way street for traffic proceeding north, and having three lanes for traffic in addition to parking lanes on both sides. Defendants concede that the Wetz vehicle entered the intersection on a green light and that the ambulance entered the intersection against a red light.

At the time of trial defendant Thorpe was the fire chief at Salix, and head of the Salix Rescue Unit. On October 29, 1970 he received a call for help to the home of one Irish, to which he responded and found Mr. Irish slumped in a chair having apparently suffered a heart attack. Thorpe and his assistants administered oxygen to Irish and placed him in the ambulance to take him to St. Joseph Hospital in Sioux City. Thorpe was driving and his three assistants--Copple, Hubert and Mulvihill--accompanied him in the ambulance. Shortly before the collision of the ambulance with the Wetz vehicle, Copple was sitting on the motor mount at the front and in the cab portion of the ambulance; Hubert was leaning against the wall of the ambulance on the right side, and Mulvihill was in the rear of the ambulance administering oxygen to the patient Irish. The ambulance was traveling in the middle lane of the three lanes provided for vehicular traffic in Nebraska Street. Defendant Thorpe testified that as he approached the intersection of Sixth and Nebraska, the signal light was red and had turned from green to red when he was about a half block south of the intersection. There was no traffic ahead of the ambulance and he could see a car stopped on Sixth Street in the south lane and also a car parked there at the curb. In the north lane of traffic on Sixth Street other cars were stopped. He testified that he was driving from 15 to 20 miles per hour, and that when he approached the intersection and observed the cars were stopped he accelerated the speed of his vehicle. When he entered the intersection Copple yelled to him to 'Stop', and looking to the right, Thorpe saw the Wetz car entering the intersection. He then applied the brakes and left three to four feet of skid marks on the pavement, changing the course of the ambulance slightly to the west prior to the impact. Collision ensued. After the accident, Mr. Irish was transferred into another ambulance and was accompanied to the hospital in the ambulance by Mulvihill. Copple and Thorpe assisted in putting the decedent Wetz on a stretcher into a third ambulance.

In her petition plaintiff asserted the driver of the defendant vehicle was negligent in the following particulars which she alleges were a proximate cause of the accident and fatal injuries and damages to plaintiff's decedent and his estate:

(a) In failing to maintain a proper lookout.

(b) In failing to have the vehicle under control.

(c) In failing to have the vehicle under control and reduce the speed to a reasonable and proper rate upon the approach of an intersection, in violation of § 321.288, The Code, 1966.

(d) In failing to drive the vehicle at a careful and prudent speed having due regard to the traffic and conditions existing at the time, in violation of § 321.285, The Code, 1966.

(e) In failing to stop in obedience to a red signal light, in violation of §§ 321.256 and 321.257, The Code, 1966.

By way of affirmative defense, defendants asserted plaintiff's decedent was guilty of negligence contributing to and proximately causing his injuries and resulting death, in the following particulars:

(a) Failure to keep a proper lookout.

(b) Failure to observe and yield the right of way to the emergency vehicle of the defendants.

(c) Failure to have proper control of his automobile.

Defendants advance the following claimed errors upon which they rely for reversal. They contend the trial court erred:

(1) In overruling their motion for a directed verdict based upon the contributory negligence of plaintiff's decedent in failing to yield the right of way to an emergency vehicle, and failing to keep a proper lookout.

(2) In finding that plaintiff's decedent was free from contributory negligence.

(3) In awarding excessive damages under the evidence of the case.

(4) In allowing interest on the total amount of the judgment from the date of death when present value was already computed into the damage award.

(5) In finding for the plaintiff and assessing damages based upon the present value or present worth of those damages under the evidence in the case.

I. After all parties had rested, defendants moved the court to direct a verdict in their favor based on the contributory negligence of plaintiff's decedent for failure to keep a proper lookout and for his claimed failure to yield the right of way to an emergency vehicle while its red lights were flashing and its siren was sounding. The record does not disclose a separate ruling on the motion of the defendants for a directed verdict; however, in the court's findings of facts the following was specifically determined:

'The Court finds that plaintiff's decedent did not know of the approach of the ambulance, nor, having the green light, and under all the circumstances, should he have known in the exercise of ordinary care of its approach, and he was under no duty to anticipate its presence.

'Defendants have failed to prove by a preponderance of the evidence their affirmative defense of contributory negligence of plaintiff's decedent, specifically: Failure of lookout; failure to yield to an emergency vehicle; or failure to have proper control; or that all or any of such specifications of negligence were a proximate cause of the collision.'

The findings of fact of the court in a law action tried without a jury are binding upon us if supported by substantial evidence. Rule 344(f)(1), Rules of Civil Procedure; Reichle v. Zeman, 204 N.W.2d 636, 637 (Iowa 1973).

In considering the propriety of a motion for directed verdict, the court views the evidence in the light most favorable to the party against whom the motion was made (in the instant case, in the light most favorable to plaintiff). Rule 344(f)(2), R.C.P.; Greenwell v. Meredith Corp., 189 N.W.2d 901, 904 (Iowa 1971). To establish their allegation of contributory negligence as an affirmative defense, the burden was on defendants to prove the proposition by a preponderance of the evidence. Generally a question of contributory negligence is for the trier of the fact; only in exceptional cases does the party having the burden of proof establish it as a matter of law. Rule 344(f)(10), R.C.P.; Ackerman v. James, 200 N.W.2d 818, 824 (Iowa 1972); Capener v. Duin, 173 N.W.2d 80, 81 (Iowa 1969). Contributory negligence will be decided as a matter of law only in the exceptional case in which such negligence is so palpable, flagrant and manifest that reasonable minds may fairly reach no other conclusion. Ackerman v. James, Supra. Even when the facts are not in dispute or contradicted, if reasonable minds might draw different inferences from them, the question becomes one for the jury or factfinder. Rule 344(f)(17), R.C.P.

With the foregoing in mind, we proceed to a review of the record evidence. It is conceded by the defendants that the Wetz vehicle entered the intersection at Sixth Street and Nebraska with a green light in the driver's favor. Ordinarily the operator of a vehicle has the right to proceed through an intersection with proper caution, relying upon a presumption that vehicles faced with the red light will stop. Sections 321.256, 321.257, The Code, 1966. An exception is provided by § 321.324, which gives an authorized emergency vehicle with red lights flashing or an audible signal sounding the immediate right of way.

Section 321.324, The Code, 1966, provides:

'Upon the immediate approach of an authorized emergency vehicle with any lamp or device displaying a red light or flashing red light from directly in front thereof, or when the driver is giving audible signal by siren, exhaust whistle, or bell, the driver of every other...

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