Thordson v. McKeighan

*411 Wennerstrum, J. Plaintiff, Hans Thordson, brought an action at law against the defendant, Merlyn McKeighan, to recover damages for personal injuries and property damage sustained as the result of a collision between plaintiff’s automobile and defendant’s truck. The defendant denied any liability. The trial court submitted to the jury the question of the defendant’s liability, and also other- pertinent questions. The jury returned a verdict for the plaintiff. The defendant has appealed. The only facts that the respective parties agree upon are that there was a collision between the car driven by the appellee and the truck driven by the appellant and the position- of the vehicles after the collision. The appellee contends that he had been on his right-hand side of the road at all times prior to the'collision and maintains that the appellant’s truck ran into 'his automobile. Appellee also contends that the truck was being operated on the wrong side of the road immediately prior to the collision. The appellant asserts that, as he was proceeding on his own right-hand side of the road, the appellee drove his automobile toward him, that appellee’s car was out of control, and that it struck the appellant’s truck, forcing it to the place on the road where the two vehicles came to a stop. The appellant maintains that the physical facts are such as to indicate appellee’s contributory negligence and that there should be no recovery by the appellee. Despite the fact that there is a pronounced variance between the parties as to the location of their respective vehicles on the road immediately prior to the time of the collision, we shall endeavor to set forth the factual situation as disclosed by the record, and also set out portions of the evidencie that the parties contend give, support to their contentions. The accident occurred on April 11, 1942, in Pottawattamie County, Iowa, at a point approximately seventeen miles northeast of Council Bluffs, on a highway which runs approximately in an easterly and westerly direction. At or near the point of the accident there is a gradual incline as the road proceeds to the east. Just beyond the crest of the hill the road branches in two directions, the main branch of the fork curving to the north or to the left, while the other branch continues more or *412 less in an easterly direction. The collision occurred approximately thirty or forty feet west, below the crest of the hill. Just prior to the collision the Thordson car was being driven in a southerly direction along the curved portion of the forked road and was proceeding into the east-and-west main road. The appellant was driving his truck east on the east-and-west highway and up the .incline. This road was a rock or gravel county highway and the traveled portion was approximately twenty-four feet in width. The appellant, as previously stated, was driving an empty truck which was of the approximate weight of 6,500 pounds. Testimony shows that the appellant was driving the truck at a speed variously estimated by certain witnesses at between thirty and forty miles per hour. The appellant and his witnesses contend that he was traveling on the south or right-hand side of the highway as he proceeded east. Appellant’s testimony is to the effect that he saw the Thordson ear some one hundred to one hundred twenty-five feet away, as it was coming around the curve from the north and proceeding west. He testified that at that time the Thordson car was traveling about sixty miles per hour, that it was swaying and swerving as it pro- ■ ceeded on the curve and onto the east-and-west highway. He .maintained that just before the accident, and when the vehicles were from ten to twenty feet apart, the appellee turned to the north, or to his right-hand side of the road. The left front part of the truck and the left front of the automobile came in contact, and when the vehicles came to a stop the appellee’s ear was approximately parallel with the grader ditch with the greater' portion of the car on the highway. The appellant’s truck was approximately at right angles to the Thordson car. The photographs, show that the truck, when stopped, was cross-way of the highway; that is, the front of the truck was pointed to the north. It is the appellant’s contention that the front end of the truck was hit by the appellee’s car and that the force of the impact swung it around to the position that it is shown to have been in when it came to a stop. ■ The appellant and his two brothers, Darrel and Harvey McKeighan, and a small child, four years of age, were in the truck. The child was sitting on Harvey McKeighan’s lap. All *413 the occupants of the truck were thrown out of the right door and the evidence discloses that the appellant’s jacket, which he was wearing, became caught underneath the left rear wheel of the appellee’s car. The weight of the appellee’s automobile was approximately 2,600 to 2,700 pounds. Appellee estimates his own speed, at or immediately prior to the collision, to have been twenty-five to thirty miles per hour and that as he proceeded around the curve from the north and continued westward he was traveling on the right edge of the graveled portion of the highway. He testified that as he continued westward he first observed the appellant’s truck' approaching him when it was about six hundred feet away; that when the vehicles were about one hundred fifty feet apart he observed that the appellant was not looking at the road and was either lighting a cigarette or talking to one of the occupants of the truck. It is the appellant’s contention — and there is considerable testimony in support of his claim — that there were tire marks leading back from the rear of the appellee’s car. Certain witnesses testified that these tire marks showed that the appellee’s car had been traveling to the left of the center of the road as he proceeded west, and on the appellant’s side of the highway. It is claimed that the photographs introduced in evidence showed tire marks leading back from the automobile to a point to the left of the center of the road. However, our observation of the exhibits certified to this court does not bear out the claim that the photographs substantially show these marks. I. It is the appellant’s strenuous contention that, because of the claimed showing of the tire markings on the photographs, and further, because of testimony as to these markings on the highway, the physical facts were such that it was the duty of the court to direct a verdict for the appellant. It is appellant’s claim that the appellee was conclusively shown to have been on his wrong side of the road at or immediately prior to the collision. It is true that this testimony as to the tire marks gives some support to this' contention. However, we are unable to reach the conclusion that this testimony is so conclusive as to cause us to hold that the appellee was guilty of contributory negligence as a matter of law. We believe it was for the jury *414 to give such consideration as it saw fit'to the evidence as to the tire marks. As bearing upon onr ruling that the question as to the tire marks and the physical facts generally was properly submitted to the jury, see Ryan v. Amodeo, 216 Iowa 752, 249 N. W. 656. We also feel that the jury had a right to give consideration to the fact that, as shown by the evidence, the appellee’s ear was apparently struck somewhere between the left front fender and the left door. The automobile was of a two-door design. The right front wheel of the truck was against the left front side of the car when the vehicles stopped. We believe it- was a matter for the jury to decide whether or not a truck weighing approximately 6,500 pounds could have been struck by the appellee’s car and dragged to the position as shown by the photographs. Especially is this true when we consider that the damage . to the truck was on its left front side and the car was damaged at or near its left door. Appellant’s citation of authorities, namely, Chicago, R. I. & G. Ry. Co. v. Wisdom, Tex. Civ. App., 216 S. W. 241; Nashville, C. & St. L. R. v. Perry, 13 Tenn. App. 268; Niemi v. Boston & Maine R. R., 87 N. H. 1, 173 A. 361, 362; Burns v. Weyker, 218 Wis. 363, 261 N. W. 244; Lavigne v. Nelson, 91 N. H. 304, 18 A. 2d 832; Scott v. Hansen, 228 Iowa 37, 289 N. W. 710; Pazen v. Des Moines Transp. Co., 223 Iowa 23, 272 N. W. 126; Bowermaster v. Universal Producing Co., 221 Iowa 831, 266 N. W. 503; Potter v. Robinson, 233 Iowa 479, 9 N. W. 2d 457; Peterson v. Phillips Coal Co., 175 Iowa 223, 157 N. W. 194, set forth good law under the facts shown in those particular cases but we do not see their applicability to the facts in this case. We hold that, under the evidence and the record as presented, the court properly submitted the case to the jury on the question of the appellee’s contributory negligence. We do not deem it necessary to cite authorities to the effect that the question of contributory negligence was a matter for the jury. II. Appellant makes complaint of portions of Instruction No. 15 which was submitted by the court. In this instruction the court set out as one of the grounds of negligence that the appellant failed to keep a proper lookout for persons and vehicles then using the road. In this instruction the court *415 commented on the duty of the defendant to keep a proper lookout, and in a separate paragraph therein made the following statement: “In this connection you are instructed that under the law no person shall drife a vehicle when it is so loaded or when there are in the front seat such number of persons exceeding three as to obstruct the view of the driver to the front or sides of the vehicle. And it is the duty of the driver of a motor vehicle at all times to exercise the caution of a reasonably prudent and careful person, and bring or have his car under proper control.” It will be observed that this part of the instruction was incorporated in a general instruction relative to proper lookout. The statute referred to in this last-quoted portion is found in section 5031.02 of the 1939 Code, and is as follows: “Obstruction to driver’s view. No person shall drive a vehicle when it is so loaded, or when there are in the front seat such number of persons, exceeding three, as to obstruct the view of the driver to the front or sides of the vehicle or as to interfere with the driver’s control over the driving mechanism of the vehicle. “No passenger in a vehicle shall ride in such position as to interfere with the driver’s view ahead or to the sides, or to interfere with his control over the driving mechanism of the vehicle.”- A study of this section has caused us to reach the conclusion that the part thereof referred to in the instruction has reference to conditions that would prevent the driver from having a proper view. It will be noted that this statute refers to the utilization of a vehicle in such a manner, or the seating of such number of persons in the front seat, “exceeding three, as to obstruct the view of the driver to the front or sides of the vehicle * * The fact that this statute, in part, refers to conditions that will make impossible proper observation by the driver is a proper feature to comment on in an instruction regarding lookout. It has been suggested by the appellant that the inclusion of the last-quoted portion of the instruction was a submission of a new *416 and separate ground of negligence which appellee had not pleaded. We cannot agree with this contention. III. The appellant makes further complaint of a portion of Instruction No. 15. The part of this instruction to which complaint is directed is as follows: “If you find by a preponderance of the evidence that the defendant in this case at and immediately before the accident failed to keep such a lookout ahead in the direction of travel, and to each side of said highway, and failed to exercise his powers of observation as a reasonably prudent and cautious person would have exercised under like or similar circumstances, and failed to- see or notice the can' of plaintiff in his situation as shown by the evidence, then you have a right to find that such driver was guilty of negligence as charged in this specification of plaintiff’s petition.” It will be observed that the italicized portion of this instruction referred to is a part of the several things that must be found by the preponderance of the evidence in order to hold the appellant guilty of negligence. We are unable to hold, as is suggested by the appellant, that this part of the instruction placed an additional and greater burden on him than the law required. The entire instruction must be considered together in order to obtain its full portent. A separated and isolated • portion of an instruction should not be made the basis of an attack when it can and should be considered in connection with the instruction as a whole. Rogers v. Jefferson, 226 Iowa 1047, 1051, 285 N. W. 701. IV. There is a further attack made by appellant to another portion of Instruction No. 15! It is hereinafter set forth and the part of which complaint is made is italicized: “But, if on the other hand you find from the evidence that at the time and place in question defendant kept a lookout, as hereinbefore defined for other cars or objects in the path of his motor vehicle and on said highway, aind that in so doing he exercised such care and such reasonable lookout as an ordinarily careful and prudent person would have exercised under like circumstances, and that in so doing he exercised the caution with respect to the operation of said motor truck that a reason *417 ably prudent md careful person would have exercised, and had or brought his truck under proper control, then the defendant would not be negligent upon this ground.” It is our conclusion that the jury should not have been instructed that a finding in respect to lookout was to be conditioned upon the fact that appellant operated his truck as a reasonably prudent and careful person and that he brought it under proper control. The exercise of ordinary care in maintaining a lookout does not necessarily include operating a vehicle as a reasonably prudent person and bringing it under proper control. As bearing upon the matter here discussed, see Keller v. Dodds, 224 Iowa 935, 944, 947, 277 N. W. 467, and cases cited. V. A further complaint is made by the appellant in regard to Instruction No. 21. In this instruction the court properly advised the jury that a failure to yield one half the traveled way by turning to the right would be prima facie evidence of negligence, but added and conditioned a finding to this effect with the following words, to wit: “and if not excused would be negligent.” There was no evidence presented relative to legal excuse and to so instruct as the court did was error. Keller v. Dodds, supra, 224 Iowa 935, 947, 950, 277 N. W. 467, and eases cited. VI. Appellant also makes complaint in regard to Instruction No. 25, which referred, in part, to consideration to be given by the jury to mortality tables and the appellee’s life expectancy. It is contended that the court failed to state that the consideration of life-expectancy tables should be considered in the light of the appellee’s injured condition. It is true that in this instruction reference is made to appellee’s injuries but the reference to these injuries does not necessarily include the consideration of them in connection with the court’s instruction in regard to the life-expectancy tables. We have condemned similar instructions where a court failed to instruct in regard to the expectancy table based on the there present condition of a party. We cannot approve this particular instruction as submitted to the jury. Hughes v. Chicago, R. I. & P. Ry. Co., 150 Iowa 232, 237, 129 N. W. 956; Scott v. Chicago, R. I. & P. R. Co., 160 Iowa 306, 319. 141 N. W. 1065. *418 VII. The trial court, in submitting three requested instructions, prefaced each of these instructions with the following statement, to wit: “I give you the defendant’s following requested instruction.” After these three instructions the court then continued the set of instructions with the following statement: “I continue with further instructions of the Court.” We do not approve of this manner of instructing. All the instructions as submitted are those of the court and there should be no indication that any of them is of less importance than any other. We said in Scott v. Chicago, M. & St. P. R. Co., 68 Iowa 360, 362, 24 N. W. 584, that the submission of instructions in this manner was not reversible error. However, we do here express our disapproval of this practice. It should not be followed. Johnson v. McVicker, 216 Iowa 654, 659, 247 N. W. 488; Carlson v. Sanitary Farm Dairies, 200 Minn. 177, 273 N. W. 665, 668. VIII. Instruction No. 16 stated that “each [driver] had a right to assume that the other would in all respects obey the law of the road governing the use of said highway by motor vehicles.” We are of the opinion that this statement should have been qualified by a statement to the effect that the above would be true unless the drivers of the vehicles knew or in the exercise of ordinary care should have known otherwise. In the light of the nature of the instructions concerning which we have commented we have concluded that we must reverse.- — Reversed. Mantz, C. J., and Smith, Miller, and Hale, JJ., concur. Mulroney and Bliss, JJ., dissent.