This is а rear-end collision case. Defendant, Audrey B. Clark, driving a 1957 Ford station wagon struck the rear of the 1956 Buick owned and driven by Harry C. Harris as plaintiff stopped to allow an automobile preceding him to turn right into a private driveway. The accident occurred about 90 feet west of the west curb line of East Desmont Drive on West Pleasant Street in Knoxville about 6:30 p.m. on May 10, 1958. The street was dry and the day clear.
I. The trial court submitted Instruction No. 14 embodying sudden emergency as confronting the defendant to the jury. Plaintiff excepted to the instruction and after a verdict for the defendant moved for new trial on the grounds, among others, the emergency, if any, was of defendant’s own making and such issue was not supported in the evidence. The trial court sustained the motion.
As we read its order, in part as follows, “* # * After carefully studying this case the court has come to the conclusion that Instruction No. 14 could be prejudicial to the plaintiff, and that in the furtherance of justice a new trial should be granted” there is no indication the court considered anything other than Instruction No. 14 as warranting a new trial. This ruling is not as clear as the ruling in Kessel v. Hunt,
Plaintiff does not attempt to save the ruling by showing other grounds of the motion were good. Brandt v. Schucha,
II. Defendant urges here for reversal there was ample evidence both of the existence of an emergency and it was not of defendant’s own making.
Striking the rear of plaintiff’s car is evidence of negligence on the part of defendant. However, this does not prevent her from showing the circumstances surrounding the occurrence and if such entitles her to an instruction that she was confronted
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with a sudden emergency not of her own making it is the court’s duty to instruct thereon. Miller v. Griffith,
In Kisling v. Thierman,
In Young v. Hendricks,
In Mongar v. Barnard,
In Cunningham v. Court,
The general rule is stated in 65 C. J. S., Negligence, section 252, page 1134, as follows: “Emergency. The questions, whether an emergency existed, and whether a person who was confronted with a sudden emergency exercised such care as an ordinarily prudent man would have • exercised, when confronted with a like emergency, ordinarily are questions of fact for the jury. The question whether one was without fault in bringing about an emergency generally is for the jury.”
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That is the rule in this jurisdiction. Kisling v. Thierman, Young v. Hendricks, Mongar v. Barnard, and Cunningham v. Court, all supra; Merchants Motor Freight v. Dоwning, 8 Cir.,
III. The evidence is, plaintiff was following a car driven by Mrs. Aileen Shumaker and that she gave a signal of intention to make a right turn both by directional turn light and with her left arm. Plaintiff says he saw only the light signal. He says she started giving the signal with the directional turn light as she cleared thе intersection. This distance was shown by measurement testimony to be 90 feet. Plaintiff testified it was 50 feet. He says his speed was 20 to 25 mph reduced to 10 mph before he stopped, and he testified, both, that he was a car length and a half, maybe two car lеngths, and approximately a car length behind the Shumaker car. Mrs. Shumaker says he was less than a car length or a car length and a half behind her. Plaintiff testified he started to bring his car to a slower speed when he saw the turn signal and he was giving a signal with his brake light fоr 30 to 35 feet. After plaintiff entered the intersection to the time he stopped he did not know where defendant’s car was. Mrs. Shumaker testified the turn in her drive was difficult and it is necessary to come to a near stop.
Defendant testified, “* * * he just suddenly stopped in front of me. I immediately applied my brakes. * * * I almost had my car stopped when the front end of my car hit the back end of his car.” She also testified, “Q. What is the fact as to whether or not you observed Mr. Harris flashing his lights on or off for any distance before he stopped suddenly? A. I did not see it. Q. About how far back of Mr. Harris were you traveling when you observed his lights flash on for a sudden stop? Just give it to us in your best judgment? A. About two car lengths”, and that she was traveling 20 mph when she started to stop. Defendant had been following Mr. Harris for several blocks at a speed of 20 to 25 mph. She knew there was a car *812 in front of Mm but could not determine anything the car was doing and did not see the turn signal of the Shumaker car.
There is a discrepancy between plaintiff’s testimony as to distances and that given by a witness who took measurements. Plaintiff at Ho time tried to correct his testimony. Plaintiff urges us to consider his testimony as conforming to the measurements to show he had his brake light on at least 90 feet rather than 30 or 35 feet as testified. One difficulty with that is plaintiff did not testify he put on the brakes at the intersection, but rather, “* * * I started to bring my car to a lower speed.” He does not come within the rule that undisputed physical facts may nullify direct testimony as expressed in Fraser v. Brannigan,
A jury question is presented on a fact issue where there is a conflict in the evidence or different inferences may be drawn from the evidence. The conflicts in the evidence are not great in this case, but different inferences may be drawn therefrom. Certainly, the jury сould have found defendant did not maintain a proper lookout, did not have her car under control and violated the assured-clear-distance statute; but it is equally true, the jury could have found from the evidence above set out plaintiff was required to make an abrupt sudden stop to keep from hitting the Shumaker car, the stop signal given by plaintiff for not more than 30 or 35 feet was not sufficient warning of his intention to decrease speed or stop to allow defendant, traveling at the same speed two car lengths behind him, to bring her station wagon to a full stop before striking plaintiff’s ear, and she could not turn to her left because of oncoming traffic.
IY. Plaintiff urges defendant was following too closely and failed to keep a proрer lookout, and such created the emergency, Section 321.307, Code of Iowa, 1958, prohibits a driver ■from following another veMcle more closely than is reasonable and prudent. Proper lookout is a common-law duty to exercise ordinary care under the circumstances. Mongar v. Barnard, supra, and Law v. Hemmingsen,
It was plaintiff’s duty to signal his intention to stop or suddenly decrease his speed to defendant immediately to the rear when there is opportunity to give such signal. Section 321.316, Code of Iowa, 1958. He did not give a signal by hand and arm. When hе put on his brake lights he stopped within 30 to 35 feet. There is no evidence of an emergency for defendant until that point, nor is there any conclusive evidence that defendant’s speed, lookout, control or following too closely were negligent before plaintiff put on his brake lights. Plaintiff’s own testimony shows he had ample opportunity to give a signal of his intention to stop or decrease his speed for at least 90 feet.
V. Plaintiff further points out for our consideration cases from this аnd other jurisdictions demonstrating the type of conduct where the rule of sudden emergency has been held inapplicable. We have examined each of them and find they are distinguishable on the facts. A brief word relative to the cases cited by plaintiff will demonstrate the distinctions.
In Carpenter v. Campbell Automobile Co., supra, and Laughnan v. Aetna Casualty & Surety Co.,
In Shields v. Holtorf,
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In Zuck v. Larson,
In Bletzer v. Wilson,
In Wachter v. McCuen,
In Metz v. Rath,
In Wiley v. Fidelity & Casualty Co. of New York,
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In Kachman v. Blosberg,
In Dwyer v. Christensen, 76 S. D. 201, 210,
In the cases denying the benefit of the emergency rule the party claiming the benefit has either had actual knowledge of a dangerous situation or in the exercise of reasonable care cоuld have had such knowledge in time to act in relation thereto. There is not evidence, as a matter of law, plaintiff here had such knowledge or could have had such in the exercise of reasonable care.
The trial court was cоrrect in submitting to the jury the issue of sudden emergency and in error in granting a new trial on the theory such instruction was not supported in the evidence.
The case is reversed and remanded with instructions to overrule the motion for a new trial and to reinstate the verdict. —Reversed and remanded.