Winter v. Davis

Decision Date12 December 1933
Docket NumberNo. 42037.,42037.
PartiesWINTER v. DAVIS.
CourtIowa Supreme Court

OPINION TEXT STARTS HERE

Appeal from District Court, Cerro Gordo County; T. A. Beardmore, Judge.

This is an action for personal injuries resulting from an automobile collision occurring on Primary Road No. 18 between Clear Lake and Mason City on the evening of February 1, 1932. A verdict was returned in favor of plaintiff and judgment entered thereon. Defendant appeals.

Affirmed.Harvey J. Bryant, of Mason City, and Putnam, Putnam, Langdon & Fillmore, of Des Moines, for appellant.

L. R. Boomhower, of Mason City, for appellee.

KINTZINGER, Justice.

Plaintiff lived in Mason City and worked at Clear Lake. He drove to Clear Lake in the morning and returned to Mason City in the evening. The defendant lived at Clear Lake and worked in Mason City and drove to Mason City in the morning and returned to Clear Lake in the evening. At the time the collision occurred, the plaintiff returned from Clear Lake and had already entered the outskirts of Mason City, and was inside of the corporate limits. Defendant was leaving Mason City for Clear Lake. The roadway runs east and west at the place of the collision. The plaintiff was traveling east and the defendant west. The weather was bad; it was misting and sleeting, and the sleet was freezing on the windshield of automobiles. The plaintiff had stopped four times in the ten miles between Clear Lake and Mason City to clean his windshield for visibility. The last time was after he had reached Mason City. In stopping, he drove over the right side of the pavement onto the south shoulder of the road, with the right side of his car against a two-foot snow bank on the south shoulder of the road. There was no snow on the north shoulder of the road.

After the plaintiff had entered Mason City, the sleet and ice on his windshield became so bad he could see nothing ahead. He then stopped on the right shoulder of the road to clean his windshield. He had a left wheel drive and it was necessary to clean the left side of the windshield. To do this, it was necessary to get out of the left front door of the car. After his car stopped, he opened the left door and was in the act of putting his foot on the running board to clean his windshield when the defendant's car “side swiped” his car, took off his left fender, knocked him to the pavement, causing him severe injuries. Plaintiff's car was struck behind the front wheel, bending the front fender and tearing off the running board and damaging the rear fender. It also knocked off the left door which Mr. Winter was in the act of opening. After being struck, the plaintiff was lying on the south half of the pavement near the black line in the center.

The defendant testified that “my windshield was slightly coated over. I could see ahead of me all the time, and I knew where I was on the highway at all times. I knew where I was going with my car right up to the time my car struck Mr. Winter's car. I saw the light from his car right up to the time of striking the car. I could not see the car itself, but I could see the lights. I was looking where I was going at the time of the collision. My eye sight is good.”

There was no evidence showing that the roadway itself was covered with snow and ice although the evidence did show that the road was somewhat slippery. There was no evidence that defendant's car skidded or slid into plaintiff's car.

The allegations of negligence submitted to the jury were (1) that defendant was driving on the wrong side of the highway; (2) that she was negligent in failing to maintain a proper lookout; and (3) in driving at a higher rate of speed than was reasonable, and at a rate of speed greater than would permit her to bring her automobile to a stop within the assured clear distance ahead, before striking plaintiff's car.

The defendant claims the ice and snow on the road was the sole cause of the accident; that plaintiff was guilty of contributory negligence in parking his car on the pavement, in failing to keep a proper lookout in opening the left door of his car and stepping therefrom into the path of defendant's car, and in failing to have his car equipped with proper lights. Defendant contends that plaintiff was guilty of negligence as a matter of law. She also complains of some of the court's instructions and of the court's action in failing to submit proper instructions upon all of the defenses raised in her answer.

[1][2] I. Defendant contends that the court erred in failing to direct a verdict for defendant because plaintiff was guilty of contributory negligence in stopping his car on the pavement and stepping into the path of defendant's car without first looking to see that he could get out in safety and in failing to keep a proper lookout.

The evidence shows that the distance between Clear Lake and Mason City is ten miles; that on account of the mist and sleet on the windshield, plaintiff stopped four times to clean it. The last time he stopped for this purpose he drove his car to his right onto the shoulder of the road. Two-thirds of his car was off the pavement entirely, and the right side of his car was up against a snow bank two or three feet high. He could not see ahead on account of the sleet on his windshield. Under the “assured clear distance ahead” statute he was required to stop. It will not do to say that a person is guilty of contributory negligence, as a matter of law, in making a temporary stop on the extreme right side of the road to clean off his windshield. A holding to that effect would penalize the driver of an automobile for doing the very thing which not only the exercise of ordinary care, but also the statute, required him to do. Code, § 5029; Ryan v. Trenkle, 203 Iowa, 443, 212 N. W. 888;Hanson v. Manning, 213 Iowa, 625, 239 N. W. 793;Smith v. Spirek, 196 Iowa, 1328, 195 N. W. 736;Jeck v. McDougall Construction Co. (Iowa) 246 N. W. 595;Perkins v. Schmit Construction Co., 215 Iowa, 350, 245 N. W. 343;Russell v. Sioux City Gas Co., 215 Iowa, 1405, 245 N. W. 705;Altfilisch v. Wessel, 208 Iowa, 361, 225 N. W. 862;Lindquist v. Thierman (Iowa) 248 N. W. 504.

“It is a well-settled rule in this state that a person rightfully driving on a highway has the right to assume that other persons using the same will obey the law.” Jeck v. McDougall Construction Co. (Iowa) 246 N. W. 595, 596.

In Smith v. Spirek, 196 Iowa, 1328, 195 N. W. 736, 739, we said: “It may not be said that the decedent was obligated to anticipate the reckless conduct of the driver of the defendant's car. It was the duty of the driver to operate his car with due care and with the requisite attention to the safety of persons upon the highway.”

Until the time he stopped, the plaintiff had not seen the defendant's car approaching. His vision was obscured by the mist and sleet on his windshield; he was not bound to anticipate that a person approaching from the opposite direction would drive over on the wrong side of the road. He was, however, by the “assured clear distance ahead” statute required to drive his car at such a speed that he could stop within the assured clear distance ahead. At the time he stopped he had practically no assured clear distance ahead, and, in order to proceed, he was compelled to clean off his windshield to obtain a vision ahead.

In Hanson v. Manning, 213 Iowa, 625, 239 N. W. 793, 796, we said: “Plaintiff, or rather the owner of the car, had the right to stop, * * * and the owner and his employees had the right to make repairs and to use the highway in reasonable manner, exercising reasonable care, for that purpose. * * * Plaintiff was not required as matter of law to keep a constant lookout for approaching vehicles. He was only required to exercise ordinary care. Whether he did so or not is a question of fact for the jury. * * * Plaintiff was not required to anticipate negligence on the part of the drivers of approaching vehicles.”

It was held in that case that prejudicial error would result from instructing in effect that a person who has stopped his car at a proper place in the highway in order to repair it must anticipate and guard against the possibility that the operator of some passing car may be negligent by passing the stationary car on the wrong side.

In Greenland v. City of Des Moines, 206 Iowa, 1298, 221 N. W. 953, 954, we said: When visibility was lost, the car should have stopped. It availed him nothing to carry automobile lights, if his windshield was obscured. The loss of visibility, and the venture of the driver to proceed without it, were clearly the proximate cause of this accident.” (Italics ours.)

Under the conditions shown by the undisputed evidence in this case, it was clearly the plaintiff's duty to make a temporary stop to clean his windshield.

It is also claimed that the court erred in not directing a verdict because the plaintiff failed to maintain a proper lookout. That is exactly what the plaintiff was endeavoring to do when he stopped his car. His vision became obscured by the sleet on the windshield to such an extent that he stopped his car for the very purpose of better enabling him to maintain a proper lookout.

It is also claimed the plaintiff was guilty of contributory negligence in stepping into the path of defendant's car. There is evidence in the case tending to show that defendant's car was not traveling in a straight line but was weaving back and forth on the pavement. Plaintiff did not step into the path of defendant's car; on the contrary, he had not stepped off of his own car. After his car stopped, he opened the left door and was just in the act of stepping onto the left running board of his car. Defendant's car struck this running board. The first time he saw defendant's car was when he was in the act of stepping onto the running board; at that time he saw defendant's car coming towards his car at an angle. The evidence tends to show that it was then too late to avoid being hit. The...

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2 cases
  • State v. Lura
    • United States
    • Iowa Supreme Court
    • May 5, 1964
    ...apply in cities and towns. And strong indications thereof in Kisling v. Thierman, 214 Iowa 911, 913, 243 N.W. 552; Winter v. Davis, 217 Iowa 424, 434, 435, 251 N.W. 770; Jordan v. Schantz, 220 Iowa 1251, 1256, 264 N.W. 259; and Silvia v. Pennock, 253 Iowa 779, 787, 113 N.W.2d However, as ur......
  • Winter v. Davis
    • United States
    • Iowa Supreme Court
    • December 12, 1933

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