Young v. Hendricks

• Citation: 283 N.W. 895,226 Iowa 211
• Decision Date: 07 February 1939
• Docket Number: 44627.
• Parties: YOUNG v. HENDRICKS.
• Court: Iowa Supreme Court

283 N.W. 895

226 Iowa 211

YOUNG v. HENDRICKS.

No. 44627.

Supreme Court of Iowa.

February 7, 1939

Appeal from District Court, Wapello County; R. W. Smith, Judge.

Action for damages for injuries resulting from an automobile accident. Verdict for plaintiff. Defendant appealed.

Affirmed.

McNett, Kuhns & Brown, of Ottumwa, and Putnam, Putnam Filmore & Putnam, of Des Moines, for appellant.

Jones & White, of Ottumwa, for appellee.

STIGER, Justice.

About 8 o'clock on the morning of November 27, 1936, plaintiff was riding in an automobile owned and driven by her husband Dillard Young. They were proceeding west on East Main Street in Ottumwa, Iowa and at the same time defendant was driving his automobile east on said street which was covered with ice. There were two automobiles parked on the north side of the street about 25 feet apart. Main Street is 33 feet wide.

The following specifications of negligence, among others, were submitted to the jury: (1) Defendant failed to travel at all times on the right-hand side of the center of the street as required by Code, Section 5019. (2) Defendant failed to obey the provisions of a municipal ordinance of the city requiring an operator of a vehicle to turn to the right when meeting another vehicle and to drive at all times on the right-hand side of the center of the street. (3) Defendant was driving his automobile without having the same under control.

Defendant-appellant-complains of the instructions on the above items of negligence because they did not submit to the jury the defense of legal excuse for violation of the statutes. Legal excuse is, as often defined by this court:

(1) Anything that would make it impossible to comply with the statute or ordinance.

(2) Anything over which the driver has no control which places his car in a position contrary to the provisions of the statute or ordinance.

(3) Where the driver of the car is confronted by an emergency not of his own making, and by reason thereof he fails to obey the statute.

(4) Where a statute specifically provides an excuse or exception.

See Kisling v. Thierman, 214 Iowa 911, 243 N.W. 552.

Appellant contends that the evidence established his defense of legal excuse under our definitions of legal excuse, numbers 2 and 3 set out above. Appellant claims that the evidence shows that the icy condition of the street caused his car to slide when he applied his brakes upon observing the appellee's automobile and made it impossible for him to control his car, the icy condition of the street being something over which he had no control which caused his car to skid, and also that an emergency confronted him caused by the driver of the appellee's car and which was not of his own making and by reason of this emergency he, upon applying his brakes, was unable to control his automobile due to the icy street.

Plaintiff's evidence is substantially as follows: When plaintiff's car had reached a point immediately east of the east parked car, plaintiff and her husband observed appellant's car approaching from the west, skidding from the south side toward the north side of the pavement directly toward plaintiff's car. At this time, appellant's car was about 120 feet west of the Young car. Dillard Young, in order to avoid appellant's car, turned his car to the right in an attempt to drive in between the two parked cars along the north curb. When the front end of his car was within three feet of the north curb and the rear of the car was just past the east parked car it was struck by appellant's automobile and thrown against the north curb, breaking the rear wheel, and when it came to rest the right rear axle was on the curb and the car was about three or four feet west of the east parked car. Plaintiff was thrown out of the door of the car on to the parking and received the injuries for which she sought compensation. Plaintiff's car was at all times on the north side of the street traveling about 15 miles per hour and did not skid at any time until struck by the appellant's car. Appellant's car was traveling 35 to 40 miles per hour. The record shows that the Young automobile traveled from a point just east of the east parked car to about three feet west of said car while appellant's car was traveling a distance of at least 40 to 50 feet.

Appellant did not testify, nor does he claim, that plaintiff's car was on the wrong side of the street at any time nor did he deny that the accident occurred on the north side of the street near the north curb. Appellant testified that he first observed the Young car approaching him from the east when it had reached a place immediately south of the back end of the east parked car.

Appellant gave his version of the accident in the following language " When I first saw the Young automobile it was practically even with the farthest car that was parked east along the curbstone on the north curb. When I first observed it it appeared to me that it was just about to the back end of this first car, and it was kind of skidding-well, the back end out a little bit and front end in. It was skidding at an angle like. It was skidding toward me. It appeared the front end had tried to turn to his right, the back end was out towards the center of the street. When I first observed the Young car skidding I would say I was around 40 or 50 feet from it. When I first observed this Young automobile skidding I was on my own side of the street which would be...