Hart v. Stence

Anderson, J. The accident out of which this controversy arises occurred about 8:30 o’clock on April 26, 1932, 6 miles east of Oelwein, Iowa, on highway No. 10, in front of what is known in the record as the Van Eman farm. The highway at this point runs east and west, is straight and level for at least one-half mile in both directions from the scene of the accident. Highway No. 10 is paved. 18 feet wide. On the evening in question the defendant-appellant, Martin Stence, was driving a truck from Oelwein east on .the highway with a 4,200-pound load in addition to the weight of the truck. 4,600 pounds. The truck was stopped immediately in front of the driveway leading to the Van Eman farm buildings just at late dusk, and was parked with its right wheels off of the pavement a distance of probably two feet. The shoulder was soft and the appellant did not drive farther on the shoulder with his heavy load on that account. The lights on the truck were turned off when it was thus parked, and at the time of the accident there were no lights displayed. The appellant had occasion to go into the Van Eman house to make a business telephone call and was gone but a few minutes, and, as he was hurrying back to the truck, there was a collision *57 between the automobile of the plaintiff and the truck. There is some controversy as to the condition as to light and dark at the time, but it is fair to say it had become quite dark at the time of the collision. The plaintiff-appellee, W. J. Hart, was driving his own car east on the highway in the same direction that the truck was headed. He had three people in the hack seat and two people besides himself in the front seat of his car. The passengers other than himself composed an orchestra which he was transporting from Oelwein to Strawberry Point. The plaintiff-appellee testifies that he was traveling 40 or 50 miles an hour; that the truck body was made of native lumber and was practically the color of the pavement, and that he did not see the truck until he was within ten or fifteen feet of it; that shortly before he came into collision with the rear of the truck he passed a car which was going west; that the lights on the approaching car were dimmed and he dimmed his lights as the two cars passed. He testifies that just as he passed the on-coming car there was a dark spot for a second or two and then he saw the truck ten or fifteen feet in front of him; that he applied his brakes and pulled to the left in an effort to avoid a collision but that he was unable to do so. Appellee also testified that he could see objects about 85 feet ahead even when his lights were dimmed. There was evidence in the record, circumstantial and direct, that the appellee’s car was being driven at a high rate of speed. His car after the collision was totally demolished and landed on its side probably 150 feet in front of the standing truck. There was also the direct evidence of three disinterested witnesses who followed the plaintiff’s car from Oelwein to the point of the collision that they were driving 55 or 60 miles an hour, some 700 or 1,000 feet behind the plaintiff’s car all the way from Oelwein to the place of the collision. These witnesses also testified that they could see and did see the parked truck prior and at the time of the collision; that they stopped their car about 30 feet hack of the truck after the collision and helped in caring for the persons who were injured. At the close of all the testimony, the material parts of which we have above detailed, the trial court on motion of the defendant directed a verdict for the defendant. Later, on the plaintiff’s motion, the verdict was set aside and a new trial granted, from which later order the defendant appeals. The only question for us to determine is whether or not a verdict should have been directed; if so, the court erred in sustain *58 ing the plaintiff’s motion to set aside the directed verdict and granting a new trial. The appellee raises the question that the assignments of error are not sufficient under Rule 30 to warrant a review in this court, but we are of the opinion that the assignments sufficiently conform to Rule 30 and apprise this court of the question involved on this appeal. The appellee’s motion to set aside the directed verdict, while in eight divisions, raises but the single question that the court erred in directing a verdict for the defendant. The appellee bases his contention on the grounds that the verdict was contrary to the evidence and contrary to law; that the evidence disclosed a case of recklessness as well as negligence on the part of the defendant; that plaintiff was free from contributory negligence; and that if plaintiff was contributorily negligent, such negligence would not be a defense as against recklessness. The trial court in sustaining plaintiff’s motion to set aside the directed verdict in effect held that the plaintiff had made a case for the jury,, and this must have been on the theory that the plaintiff was free from contributory negligence, or that contributory negligence did not constitute a defense under the circumstances. If the trial court erred in thus holding, then the case must be reversed. It is recognized that the trial court has a broad discretion in sustaining a motion for a new trial, and ordinarily we reluctantly interfere with such discretion; nevertheless, if the record discloses that the trial court was right in directing a verdict and improperly sustained a motion to set such directed verdict aside, we should not hesitate to reverse such action by the trial court. Such has been our ruling in many cases. Bennett v. Ryan, 206 Iowa 1236, 222 N. W. 16; Busse v. Schaeffer, 128 Iowa 319, 103 N. W. 947; Turley v. Griffin, 106 Iowa 161, 76 N. W. 660; Gregory v. Pierce, 186 Iowa 151, 172 N. W. 288; Kessel v. Hunt, 215 Iowa 117, 244, N. W. 714, and many other cases. In the Bennett v. Ryan case, supra, Justice Evans used this language: “If the defendant was entitled to a directed verdict upon the merits, as disclosed in the record, this of itself would ordinarily negative the right of the plaintiff to a new trial. * * * We reach the conclusion that the district court should have directed a verdict for the defendant. The jury having rendered such verdict, the error *59 was cured. The verdict, therefore, should have been permitted to stand. The order of the district court granting a new trial is therefore reversed.” In Gregory v. Pierce, supra, we said: “While it is true, as contended by plaintiff, that there is a large discretion lodged in the trial court on rulings sustaining motions for new trial, and that we seldom interfere with such rulings, still, if the ruling of the trial court in directing the verdict was right, and the motion for new trial improperly sustained, we should say so.” This case was reversed and remanded with directions to overrule plaintiff’s motion for a new trial and permit a directed verdict to stand. We have also held that where the ruling upon a motion for a new trial presents a pure question of law, there is no room for the exercise of discretion on the part of the trial court, and that the abuse of discretion lodged in the trial court, under such circumstances, will be reviewed by this court, and the ruling of the trial court reversed if found to be erroneous. Shaw v. Sweeney, 2 G. Greene, 587; Stewart v. Ewbank, 3 Iowa 191; Riley v. Monohan, 26 Iowa 507. It must be conceded that the defendant was negligent in leaving his unlighted truck parked upon the highway as is disclosed by the record. There is, however, absolutely no evidence of recklessness as that term has been defined by this court. See Kisling v. Thierman, 214 Iowa 911, 243 N. W. 552; Wosoba v. Kenyon, 215 Iowa 226, 243 N. W. 569. With the concession or assumption that the defendant was negligent, it then becomes pertinent to inquire as to the contributory negligence of the plaintiff. Section 5029 of the 1931 Code provides as follows: “Any person driving a motor vehicle on a highway shall drive the same at a careful and prudent speed not greater than nor less than is reasonable and proper, having due regard to the traffic, surface and width of the highway and of any other conditions then existing, and no person shall drive any vehiclé upon a highway at a speed greater than will permit him to bring it to a stop within the assured clear distance ahead” (Italics aré ours.) We have many recent cases construing this section and defining the assured clear distance ahead. Wosoba v. Kenyon, supra; Kisling *60 v. Thierman, supra; Kadlec v. Construction Company, 217 Iowa 299, 252 N. W. 103; Greenland v. City of Des Moines, 206 Iowa 1298, 221 N. W. 953, 954; Peckinpaugh v. Engelke, 215 Iowa 1248, 247 N. W. 822. In the last-cited case the facts were not unlike the facts in the case at bar. There the plaintiff collided with the rear end of an unlighted truck. In that case, however, the plaintiff had the excuse that the accident happened on a curve; that he was driving only 20 miles an hour, while in the case at bar the accident happened on a straight, level highway and the plaintiff’s own testimony shows that he was driving 40 or 45 miles an hour. In the Peckinpaugh case plaintiff’s car was jammed against the standing truck. In the case at bar plaintiff’s car was hurtled from 50 to 150 feet east and beyond the defendant’s truck and was entirely demolished. In the Peckinpaugh case plaintiff’s lights would disclose an object ahead 20 feet, in the present case plaintiff claims his lights would disclose an object 85 feet. In the Peckinpaugh case there were also lighted cars coming from the opposite direction. In that case we held that the plaintiff was guilty of contributory negligence as a matter of law. The Peckinpaugh case was cited with approval in the Wosoba case, supra. In the Wosoba case we said: “Because of the statute above quoted [5029], it was incumbent upon the appellant to so adjust his rate of speed that he could stop the automobile in the assured clear distance ahead. This duty was upon, the appellant under all the circumstances, including the event of blinding headlights of a car approaching in the opposite direction.” In the Kisling v. Thierman case we held that an operator of an automobile failing to comply with statutory regulations is guilty of negligence, but under certain circumstances such negligence may be avoided by showing a legal excuse therefor, that is, first, any excuse provided for by statute, and, second, that without plaintiff’s fault, circumstances render compliance with the statute impossible. There is no attempt on the part of the plaintiff in this case to establish an excuse for his failure to observe the provisions of the statute above quoted. In Greenland v. City of Des Moines, supra, we said: *61 “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, was clearly the proximate cause of this accident.” In the Lindquist v. Thierman case, 216 Iowa 170, 248 N. W. 504, 87 A. L. R. 893, we said: “If, then, the driver of an automobile, because of the defective lights, cannot see more than ten feet ahead of his car, he must so control the same that he can stop it if necessary within such radius of the lights.” In the instant case, when the plaintiff lost visibility because of the lights of the approaching car, he should have reduced his speed so that when he lost all visibility he could stop immediately. Had he done this, the accident in question would not have occurred. The approaching lights did not constitute a diverting circumstance and plaintiff should have either discovered the presence of the parked truck in the road in time to avoid a collision or should have reduced the speed of his car to such an extent that would permit him to stop within the assured clear distance. Ellis v. Bruce, 217 Iowa 258, 252 N. W. 101. There is nothing in the case of Kadlec v. Construction Company upon which the plaintiff can rest his position. In that case we held that where a motorist is blinded by lights of an approaching automobile, he is required to stop at once, unless an object on the highway with which he later collides is undiscernible or becomes so by reason of peculiar facts or circumstances beyond the driver’s control. Under the record and our prior pronouncements, we are constrained to hold that the plaintiff was guilty of contributory negligence as a matter of law; that he offered no legal excuse for his violation of the statute quoted; and that his failure to observe the provisions of the quoted statute was negligence and, under this record, caused or contributed to cause the accident in question. It follows that the trial court erred in sustaining plaintiff’s motion to set aside the directed verdict and granting a new trial. The case is therefore reversed and remanded with instructions to set aside the *62 order granting a new trial and permitting the directed verdict and judgment rendered thereon to stand.- — -Reversed and remanded. Donegan, Evans, Stevens, Kindig, and Albert, JJ., concur. Mitchell, C. J., and Claussen, J., dissent.