Wilson v. Jefferson Transp. Co.

• Citation: 163 N.W.2d 367
• Decision Date: 10 December 1968
• Docket Number: No. 53104,53104
• Parties: Ralph WILSON, Appellee, v. JEFFERSON TRANSPORTATION CO. and Oran H. Bunce, Appellants.
• Court: United States State Supreme Court of Iowa

Page 367

163 N.W.2d 367

Ralph WILSON, Appellee, v. JEFFERSON TRANSPORTATION CO. and Oran H. Bunce, Appellants.

No. 53104.

Supreme Court of Iowa.

Dec. 10, 1968.

Jones, Hoffman & Davison, Des Moines, for appellants.

Don J. Wilson, West Des Moines, for appellee.

BECKER, Justice.

This action grows out of a collision at the intersection of Bird Street and Second Avenue, north of Interstate 80 in Polk County on July 15, 1965 about 5:20 P.M. Plaintiff Wilson was driving north on Second Avenue, a four-lane divided street. He collided with defendants' bus which had come through the Bird Street intersection and was athwart Second Avenue. Plaintiff alleged failure to yield the right of way, failure to keep a proper lookout, failure to obey traffic control signs and failure to have the bus under control. The jury returned a verdict for plaintiff in the sum of $25,000.00. Defendants appeal citing jury instructions and excessive damages as reversible error.

The nature of the intersection is quickly and accurately illustrated by plaintiff's exhibit 3 reproduced herewith. The top of the picture is south.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Defendants' bus came off the overpassing superhighway on the ramp shown at the right center of the picture and approached underpassing Second Avenue on the inferior, stop-sign controlled street.

Plaintiff was proceeding north on Second Avenue. He saw the bus coming down off Interstate 80 on Bird Street: '* * * I kept driving. I--it never dawned on me that the bus would pull out there and wouldn't stop. * * * Q. Well, did you notice whether or not it stopped, or did it slow down, or what did it do? A. I really didn't notice. I just assumed he didn't stop, because he just rolled right out in front of me.' On cross-examination, plaintiff said he could not swear as to whether the bus did or did not stop.

Defendant bus driver testified he stopped behind another car at the stop sign in question. The car pulled out. He pulled his bus up to Second Avenue and stopped again. A northbound car on Second Avenue turned left into the median to cross the west (southbound lanes) and stopped for traffic. This forced defendant to stop with the front part of his bus in the median area. Since the bus is 40 feet long and the northbound slab 20 to 22 feet wide the truck blocked the entire traveled way.

On rebuttal George Ballard testified he took the same route as the bus. He stopped at the stop sign, crossed the east lanes of Second Avenue and turned left or south on Second. As soon as he turned he heard brakes screeching. He looked around and saw the car sliding. It hit the bus at the left rear duals. The bus was still moving when struck.

The patrol officer's testimony established point of impact at one foot, one inch west of the east edge of the north bound lane of Second Avenue. Plaintiff's car had laid down 71 feet of skid marks.

I. Defendants' first assignment of error is there was insufficient evidence to justify submission of plaintiff's allegation that defendant negligently failed to obey a traffic control sign. They first reason that the specification is nonstatutory, i.e., dependent on common law, because plaintiff did not plead the statute. Since rule 94, Rules of Civil Procedure was changed in 1963 by deleting the sentence, 'But a pleading asserting any statute, or a right derived therefrom, shall refer to such statute by plain designation,' it is not necessary to plead the statutes upon which the pleader relies. State ex rel. LeBuhn v. White, 257 Iowa 606, 608, 133 N.W.2d 903.

The comment on this amendment to rule 94 found in the pocket part to Cook, Iowa Rules of Civil Procedure, Volume I, states: 'This change is to assure judicial notice of Iowa statutes without reference thereto in the pleadings.' If the evidence justifies submission of the charge under the statute, the specification was properly submitted as a statutory violation.

II. Defendants argue the record taken as a whole and viewed most favorably to plaintiff reveals no substantial evidence that the bus failed to obey a traffic control signal.

We said in Turbot v. Repp, 247 Iowa 69, 74, 72 N.W.2d 565, 568: 'The requirement that drivers on the side road Stop and Yield gives traffic on the through highway the right of way. As pointed out by the distinguished trial court, the duty to stop and the duty to yield are compound duties. The requested instruction would have separated them and improperly applied the no eyewitness rule to a portion of such duties only. Its refusal was correct.' See also Hittle v. Jones, 217 Iowa 598, 250 N.W. 689 and sections 321.321, 321.322, Iowa Code (1966).

Defendant attacks the foregoing authorities on the ground Turbot v. Repp, supra, only decided that the no eyewitness rule applied to neither facet of the statute in question. We think the above quoted paragraph was necessary to the issue decided and therefore not obiter dicta. In any event both sections 321.321 and 321.322 require the motorist to stop and, having stopped to yield to motorists on the favored highway. A careful reading of the statutes indicate the disjunctive 'or' is used only to distinguish between situations where yield signs are used in contradistinction to stop signs. The statutes as a whole require the compound duties noted above.

We find substantial evidence to justify a jury finding that either or both facets of defendants' duties were violated. Plaintiff's testimony, taken as a whole, permits the conclusion he first saw the bus at a distance of about 200 feet. If consideration is given to the relative distances of the vehicles, their length and all other material evidence, the jury might well find the bus did not have time to come to a full stop (or make two full stops as defendant driver testified) after plaintiff first saw it and also pull out to its position at point of impact.

We think there was sufficient evidence to justify the court's submission of the issue of failure to obey a traffic control signal as negligence.

III. Defendant also complains of the court's failure to instruct on speed in the manner requested. The court gave the standard instruction on speed, predicated on Iowa Code, 1966, section 321.285 which tells the jury that a motorist shall drive at a careful rate of speed having due regard for all conditions then existing. Defendants requested an instruction under section 321.288 which would have told the jury that a motorist shall reduce speed when approaching or traversing an intersection unless he is already driving at a reasonable and proper rate of speed. The requested instruction sets forth the appropriate rule more fully than the shortened allusion here used and is correct as requested. The trial court apparently did not feel it was required in this case. We agree.

The section 321.288 statutory duty to reduce speed at intersections is in addition to the general rule set forth in section 321.285 that all motorists must drive at a reasonable and proper rate under the circumstances then existing. The court properly instructed on the latter facet of the case. The additional duty to slow down at intersections is ordinarily not applicable to motorists on through highways where intersecting traffic has the duty to stop and yield. The general considerations are stated in Paulsen v. Haker, 250 Iowa 532, 95 N.W.2d 47, 51--52:

'The true rule is that the statutory right of way is not a guarantee of safety, but that the driver on the protected road must use reasonable care under the existing circumstances for his own safety and that of others. Likewise, in connection with the duty to keep a proper lookout, we think it is his duty to make reasonable observation of all surrounding circumstances, including intersections and other traffic which may be in fair view on intersecting roads, and to use such care as an ordinarily prudent man would do in the light of everything disclosed by such observations.'

Paulsen v. Haker, supra, considers the situation where the motorist knows, or should know, the car on the inferior road is not going to afford the right of way. He must exercise reasonable care under such circumstances. The negligence of a driver on the favored road in such circumstances involves lookout, control and speed. But the speed concepts are controlled by the situation developed after the favored driver knows, or should know, the inferior driver is not going to obey the law.

The duty of a motorist to slow down, as he approaches in intersection, while on a favored highway has been considered by the Michigan Supreme Court in Noyce v. Ross, 360 Mich. 668, 104 N.W.2d 736: 'Arterial highways and superhighways are designed for the purpose of moving automobile traffic at high rates of speed. This subject has been discussed in McGuire v. Rabaut, 354 Mich. 230, 92 N.W.2d 299.'

The McGuire case considers the matter more fully, 92 N.W.2d at p. 303: 'We have seen that the favored driver is not required to have his car under such control that he may bring it to a stop at each intersection he approaches upon the theory that some reckless, or semiconscious, or suicidal subordinate driver will dispute his passage. This would bring traffic on arterial highways, for all practical purposes, to a complete stop. At each successive intersection the arterial driver would have to slow down to a few miles per hour, and at blind corners he would be required literally to nudge his car forward into the intersection, until he crossed the threshold of vision for the subordinate street, lest he not be able to stop instantly should danger threaten. But the purpose of the through highway is to move great volumes of traffic at relatively high speeds. Such purpose cannot be accomplished if our application of the standard of due care does not take into account the unique function of the arterial highway. Thus it was that we said in Arnold v. Krug, 279 Mich, 702, 707, 273 N.W. 322, 324, that, 'The...