Winter v. Moore

• Citation: 121 N.W.2d 82,255 Iowa 1
• Decision Date: 09 April 1963
• Docket Number: No. 50890,50890
• Parties: Sarah WINTER, Appellant, v. Collis MOORE and Linda Moore, Appellees.
• Court: United States State Supreme Court of Iowa

Page 82

121 N.W.2d 82

255 Iowa 1

Sarah WINTER, Appellant, v. Collis MOORE and Linda Moore, Appellees.

No. 50890.

Supreme Court of Iowa.

April 9, 1963.

Jones, Cambridge & Carl, Atlantic, for appellant.

Smith, Peterson, Beckman & Willson, Council Bluffs, and Swanson, Swanson & Boeye, Red Oak, for appellees.

GARFIELD, Chief Justice.

Plaintiff, Mrs. Sarah Winter, 58 at the time in question, brought this law action in two counts against defendants Collis Moore, owner, and Linda Moore, his daughter, driver of the automobile in which plaintiff was a passenger, for injuries sustained in a collision with an oncoming car. Count I alleges the trip during which the collision occurred was for the mutual benefit of plaintiff and defendant Collis and also for the latter's benefit. Also that the collision was caused by Linda's negligence in certain respects. Count II alleges plaintiff was a guest in the automobile and the collision was caused by Linda's recklessness.

At the close of the evidence defendants' motion for directed verdict on plaintiff's Court II was sustained. Count I was submitted to the jury which returned a verdict for defendants on which judgment was entered. Plaintiff has appealed. She assigns error in the instructions to the jury on two issues: 1) defendants' allegation that Linda was confronted by a sudden emergency, not of her own making, and by reason thereof the collision occurred, and 2) in submitting to the jury the question whether the trip was for the mutual benefit of plaintiff and defendant Collis, rather than to state such status existed as a matter of law. Plaintiff's third assigned error challenges the directed verdict on her Count II. We consider the three assignments in the above order. Evidence pertinent to each will be referred to when considering the error.

Linda was driving with her father's consent and the latter would be liable for damage done by her negligence. Section 321.493, Codes, 1958, 1962, I.C.A.

I. Instruction 16 to the jury states in part that where one is confronted with a sudden emergency, not brought about by his own fault, he is not held to the same accuracy of judgment as would be required if he had time for deliberation. For our purposes it is not necessary to set out the entire instruction. Plaintiff objected to the instruction on the ground there is no evidence defendant-driver was confronted with a sudden emergency not brought about by her own fault and Linda's own testimony shows any emergency which confronted her was of her own making.

For a sudden emergency confronting a motorist to be an excuse for violation of a statutory rule of the road it must not have been of his own making. Kisling v. Thierman, 214 Iowa 911, 916, 243 N.W. 552, and the many decisions that have followed it; Wachter v. McCuen, 250 Iowa 820, 827, 96 N.W.2d 597, 600; Harris v. Clark, 251 Iowa 807, 809-811, 103 N.W.2d 215, 217. See also Anno. 80 A.L.R.2d 5, 15-16.

The problem plaintiff's first assigned error raises is whether a jury question was created as to whether Linda was confronted with a sudden emergency not of her own making or was the emergency, at least in part, of her own making. This calls for a review of the evidence, in the light most favorable to defendants, as to how the collision occurred. This evidence also bears on plaintiff's third assigned error that a jury question was raised on the issue of Linda's recklessness. We disregard for now evidence of plaintiff's status as a guest or otherwise in the car. Of course in considering whether a jury question was raised on the issue of recklessness the evidence must be viewed in the light most favorable to plaintiff. Rule 344(f), subd. 2, Rules of Civil Procedure, 58 I.C.A.

There is less dispute in the evidence than in many motor vehicle damage cases. The collision occurred on paved U. S. Highway 71 about five miles north of Villisca where the principals lived. The highway was substantially straight and level at this point. Five vehicles were somewhat involved in the tragedy. Four were proceeding north, the fifth--the oncoming car--south. Before passing of the two northerly northbound vehicles was attempted, a state highway patrolman was immediately ahead of defendants' car. Two trucks loaded with cattle were ahead of the patrol car. Each was slightly under 50 feet in overall length. There was a space of 300 to 500 feet between the two trucks. The patrol car passed the south truck on its left and turned back into its right (east) lane between the two trucks. Linda then closed the distance between defendants' car and the rear truck.

Linda next pulled out to the left to see if it was all right to pass the rear truck. She then observed the patrol car 400 to 600 feet ahead of her in the act of passing the front truck. On the assumption it was safe for her to pass the south truck she turned clear into her left (west) lane to do so and accelerated her speed five to ten miles an hour. She succeeded in getting nearly even with the cab of the truck when the patrolman turned into his right (east) lane ahead of the leading truck. She then saw for the first time the car of a Mr. Gills approaching from the north. Thinking she would be unable to complete passing the south truck Linda applied her brakes and tried to get into her right lane behind it. She testifies she realized she 'wasn't going to make it' and decided to turn to the left and try to get to the ditch on the west side of the pavement. She didn't get to the ditch and collided with the oncoming Gills car in the west lane about midway of the (south) truck.

Plaintiff relies strongly on Linda's testimony, repeated at least two or three times, that as she pulled into the left lane to pass the south truck the patrol car, passing the north truck, obscured her vision of oncoming traffic. 'I couldn't see any oncoming traffic because the patrol car hid it. * * * When I pulled into the left lane I did not know whether there was an oncoming car. * * * When I pulled out I assumed, without knowing, the roadway ahead would be clear.'

Linda's mother, the third occupant of defendants' automobile, also testifies she was unable to see beyond the patrol car while it was passing the front truck. 'At the time we eased out and looked up and saw the patrol car ahead of us in the left lane I could not see the roadway beyond it. When we pulled on out the patrol car was still in the left lane. I could not see the roadway beyond it.' Plaintiff also says she couldn't see beyond the patrol car. There is no evidence to the contrary.

The patrolman testifies in effect that skid marks left by defendants' car extended 110 feet to, and 26 feet beyond, its point of impact--136 feet in all. The point of impact was in the west traffic lane about 3 1/2 feet from the west edge of the paving. The patrolman also says that after he passed the front truck, 'When I returned to my lane, the oncoming car was about 150 feet in front of me. The Moore car was approximately five to six hundred feet behind me. * * * The Moore car was * * * approximately 700 feet from this oncoming car, six to seven.'

Section 321.303, Codes, 1958, 1962, I.C.A., provides: 'Limitations on overtaking on the left. No vehicle shall be driven to the left side of the center of the roadway in overtaking and passing another vehicle proceeding in the same direction unless such left side is clearly visible and is free of oncoming traffic for a sufficient distance ahead to permit such overtaking and passing to be completely made without interfering with the safe operation of any vehicle approaching from the opposite direction or any vehicle overtaken. In every event the overtaking vehicle must return to the right-hand side of the roadway before coming within one hundred feet of any vehicle approaching from the opposite direction.'

Two of plaintiff's charges of negligence are based on claimed violation of this statute.

We think plaintiff's first assignment of error must be sustained. We find no evidence to support a finding any emergency with which Linda was confronted was not caused or contributed to by her own violation of the quoted statute. On the contrary she admits driving in the left lane in an attempt to pass the south truck when her view of oncoming traffic was obstructed. Her own testimony shows the left side of the highway was not 'clearly visible' nor 'free of oncoming traffic for a sufficient distance ahead to permit' passing of the truck without interfering with the safe operation of the oncoming car. As indicated, there is no evidence contrary to hers.

An extended annotation in 80 A.L.R.2d 5, 15-16, on instructions on sudden emergency in motor vehicle cases states that generally to warrant such an instruction the evidence should be sufficient to support a finding 'that the perilous situation was not created or contributed to by the person contronted, or, as held or stated in many cases, by the tortious act or conduct of such person, * * *.' See also Anno. 47 A.L.R.2d 6, 15.

5A Am.Jur., Automobiles and Highway Traffic, states: 'Generally the driver of an automobile cannot invoke the emergency rule as a means of avoiding the effect of his own violation of a * * * rule of the road. He is not permitted to create an emergency by his own negligence, as by operating the vehicle * * * on the wrong side of the highway, and then derive a benefit from such situation.'

Raddant v. Tamminen, 266 Wis. 49, 62 N.W.2d 428, 429, is a case much like this where the car immediately ahead of defendant's 'pulled out to pass the car ahead of it. She pulled out to pass the car then ahead of her. As the first car moved back into the right-hand lane of traffic, she saw the Raddant car coming in a northerly direction and then tried to get back into her right lane of traffic but couldn't.' Defendant's view there was also obscured by a hill which declined in the direction she was going. The court held defendant created the emergency in which the...