Beck v. Dubishar

Hays, J. — Plaintiff brought suit for property damage to his car due to a collision between plaintiff’s ear and car owned by defendant Ben W. Dubishar and being driven by defendant Vernon A. Dubishar. Defendants counterclaim for both personal injury and property damage. A jury returned a verdict for plaintiff and from a judgment entered in accordance therewith defendants appeal. Four propositions are urged as a basis for reversal: (1) Error in overruling motion for a. directed verdict and for judgment notwithstanding the verdict (2) refusal to give requested instruction No. 5 (3) refusal to give requested instruction No. 6, and (4) failing to submit an instruction on assured clear distance ahead. The collision occurred at the intersection of two gravel country roads. Appellee was driving west on an east-west road. Appellant was driving north on a north-south road. At the intersection, as one approached it from the east, visibility to the south was obstructed by a cornfield. There was no obstruc *269 tion of visibility to the north. Likewise, visibility of one approaching the intersection from the south was obstructed to the right or east, and was clear to the left or west. Appellee approached the intersection from the east at an admitted speed of 50 to 55 miles per hour. Ahead and to the right, or north, there was no traffic, when, at a point about 100 feet east of the intersection, he first saw appellant’s car as it entered the intersection from the south. He was unable to stop and collided with defendant’s car. T. Appellant’s first contention is that appellee was guilty of contributory negligence as a matter of law and the trial court should have directed a verdict. This claim is based .upon the alleged violation of section 321.288, Code of 1946. It provides : “The-person operating a motor vehicle or motorcycle shall have the same under control and shall reduce the speed to a reasonable and proper rate: * * * “3. When approaching and traversing a crossing or intersection of public highways * * Appellant cites three Iowa eases as authority for the proposition that a speed of 50 to 55 miles per hour is per se a violation of section 321.288, supra. The cases cited are not in point as to the factual situation nor as to the legal status of the respective parties. The cases are Lang v. Kollasch, 218 Iowa 391, 255 N. W. 493, Wimer v. M. & M. Star Bottling Co., 221 Iowa 120, 264 N. W. 262, and Young v. Clark, 226 Iowa 1066, 285 N. W. 633. All three cases were under section 5026.01, Code of 1939, which was repealed by chapter 175, Acts of Forty-ninth General Assembly, and what is now section 321.319, Code of 1946, was substituted. The cases of Wimer v. M. & M. Star Bottling Co. and Lang v. Kollasch, supra, involved left turns in the intersection while the Young case, supra, is based upon the theory that the defendant had entered the intersection prior to plaintiff and had the right of way. In the case at bar appellee was approaching the highway from appellant’s right and under section 321.319, Code of 1946, had the right of way. It is common knowledge that a spé'ed of 50 to 55 miles an hour upon our highways is not *270 per se an unreasonable speed. Under appellant’s theory anyone who approaches an intersection at such speed is guilty of contributory negligence. True, in many cases such speed and even many miles slower might constitute contributory negligence, while in other cases it might not. Many other elements than speed enter into the question. As stated in Davidson v. Vast, 233 Iowa 534, 541, 10 N. W. 2d 12, 16: “Even if decedent were traveling at. fifty miles per hour, we are not prepared to hold that he would thereby be guilty of contributory negligence as a matter of law. He had a right to assume, until he knew or in the exercise of reasonable care should have known otherwise, that any driver approaching from the east would comply with the statute governing the right of precedence.” Whether appellee acted with reasonable caution in approaching the intersection is clearly a question for the jury under this record. II. Appellant takes issue with the refusal of the trial court to give appellant’s requested instructions Nos. 5 and 6. Both of these instructions deal with the question of the assured clear distance ahead. They are both long and will not be set out at length. They both are incorrect statements of the law, as may be illustrated by the following excerpt from requested instruction No. 6: “In this connection you are instructed that it is the law of this state that, ‘No person shall drive any vehicle upon a highway at a speed greater than will permit him to bring it to a stop within the assured clear distance ahead.’ ” The requested instruction in stating the law fails to include therein what is a very material part thereof, to wit, “such driver having the right to assume, however, that all persons using" said highway will observe the law” (being section 321.285, Code of 1946). It would have been error upon the part of the court if it had given the instructions as requested. Central States Elec. Co. v. McVay, 232 Iowa 469, 5 N. W. 2d 817. III. Appellant’s final assignment of error is the failure of the trial court to submit to the jury, upon the counterclaim, the alleged specification of negligence as to the assured clear distance ahead rule. *271 It will be observed that appellee recovered a verdict at the hands of the jury which necessarily determined in his favor the negligence of the appellant, the proximate cause of the damage and the freedom of appellee from contributory negligence, which precludes appellant from a recovery under the counterclaim. Appellant is not therefore prejudiced by the failure to submit such issue, assuming, but not holding, that the same was properly in the case. Davidson v. Vast, supra. See also Angell v. Hutchcroft, 231 Iowa 1057, 3 N. W. 2d 147; Davis v. Hoskinson, 228 Iowa 193, 290 N. W. 497; Smith v. Pine, 234 Iowa 256, 12 N. W. 2d 236. There being no error, the judgment of the trial court is affirmed. — Affirmed. Oliver, Bliss, Garfield, and Mulroney, JJ., concur. Mantz,- C. J., and Hale, Wennerstrum and Smith, JJ., dissent.