*1 844 voluntary recognized sale would have Although the challenged instruction probability might
and been
of
phrased by
influenced
be better
scholars
some
fixing
law,
zoning change in the near future in
substantially
it
is still
cor
price.
re-
selling
The fact would still
rect.
that on
of the condemna-
main
the date
jury
told,
The
was properly
tion,
1963,
each
29,
January
13 and 14
Lots
instruction given should be
construed
residential,
R-l
were zoned
value
light
harmoniously
with all oth
of that date
still be reached on
must
Anthes,
ers. See Anthes
260,
258 Iowa
they
the basis
facts as
then would
267,
advising value time of
taking was still the determinative factor. subject we held in Belle v.
On Commission, Highway 256 Iowa State James HEDGES, W. Appellee, 43, 51, in 311, jury Iowa 50 - unduly emphasize structions should CONDER, Ronald Appellant. Gene case, theory phase of a and mention testimony party necessi favorable to one No. 53200.
tates mention of that which is unfavor Supreme Court of Iowa. able. April 8, 1969. The classification land subject question. taking time of as we
It was then zoned residential. And Highway
held in Mohr v. State Iowa. Commission, cit., quoted supra, loc. 141, 720, evidence as
Iowa N.W.2d may reasonably
uses which land
adapted only to be considered for
effect has on market value at time of
taking, not at some later date.
Furthermore, court has con
sistently adhered to the rule the measure partial taking damages is the dif actual,
ference or fair market value property immediately after before and condemnation. Iowa See State Jones Commission,
Highway 621- and Nedrow v. Mich Co.,
igan-Wisconsin Pipe Line
763, 768-769, N.W.2d
The court overruled defendant’s motion notwithstanding the judgment for verdict plaintiff’s neg- basеd his contention proximate ligence cause in- of his juries a matter of and his alterna- tive for new motion trial based submis- plaintiff’s neg- sion to the issue Riley Davis, Duncan, Jones, Eugene ligence by reason of mu- violation Moines, appellant. Davis, for & Des nicipal ordinance and state statute as question fact receiving and in de- over Jones, Des & Jones, of Rockwell Oscar objection expert’s opinion fendant’s Moines, appellee. speed. *4 appeal challenges Defendant’s the cor- MASON, Justice. rectness of these rulings: on an from appeals judgment Defendant Procedure, Rule 243(b), Rules of Civil brought jury verdict an action adverse provides: for sustained Hedges injuries W. James Ronald Gene by defendant struck when “If the movant was a entitled have to Moines in the Des automobile Conder’s verdict directed for him at the close all of district. business evidence, therefоr, and moved and the at trial: presented jury verdict, were did not return Three issues such the court a may entitled to grant was then either trial defendant a new enter (1) Whether verdict, judgment the court though Whether (2) as it had directed a ver- directed was plaintiff dict for that the movant.” have instructed Ad- (3) and of law as a matter negligent I. Keosauqua Way in Des a Moines is witness of- opinion missibility of asphalt six-lane two-way street with traffic on based speed expert as as an to fered running northwesterly southeasterly. and marks. tire The northeast lane next to curb is wide, verdict directed feet for the other in motion lanes 11 feet. The point asserted plaintiff’s evidence of the accident giving the close of rise this at to a matter lawsuit negligent as is within a plaintiff having was business district speed his cause of proximate it limit of 25 and miles was hour. The In Reppert building was overruled. plaintiff motion where injuries. was em- all ployed at close as route renewing this motion salesman located on Keo, just east ground added as a side of south defendant of Eleventh evidence Street, a Des undisputed having violation narrow appear- street plaintiff’s constituted ance alley of an municipal ordinance without sidewalks. There Moines was a are no of law which marked a matter crosswalks on negligence as Keo After this Eleventh injuries. his Street. proximate cause to moved defendant was overruled motion plaintiff Before the accident had been his as to any issue withdraw employed Reppert’s Retail Merchant De- be- negligence proving burden livery thirty years. over For three last municipal violation of of his cause years of those company’s had been the ordinance. policy stop to traffic four defendant five evening was denied minutes each its this motion аssist When em- entering instructions trucks in timely request Reppert from the Keo made de- building during affirmative theory of rush hour his from about bracing this :30, refusal period 4:45 to S to the when traffic objected court’s on Keo and fense “jam packed, bumper bumper”. about them. give About 5:10 December it was as were to 2 feet to right of the white 1½ getting plaintiff proceeded dark line, with dividing putting him in about the cen- flashlight onto stop Keo to traffic. As he ter of the driving area of the curb lane. walked to the sidewalk there was traffic no An investigating officer called in the curb lane. The weather was clear scene testified as skid marks in the dry. lights The street lights car beginning street south of Eleventh. theOn up hand, on. He held waved left they side measured 46 feet 11 inches flashlight and waited until the car in first right side 49 feet 11 inches. completely the middle lane stopped From his investigation he was unable proceeded then west to the white divid- linе determine the impact. ing the curb lane from the lane. second Although traffic moving in the inside Plaintiff described his position own after lane, plaintiff or third was interested he had taken a step or two back into the stopping traffic only the curb and mid- curb impact lane before the facing dle Reppert as the lanes trucks were to building or toward the curb lane with his right turn go and west on Keo. head turned at a slight angle. He first caught a glimpse out of the corner There a full line of behind traffic eye of pulled defendant’s car out of stopped the first car the middle traffic lane probably 40 middle As he a step lane. took two feet from him “coming at a fast rate of *5 building, east back toward the into the speed”. He speed estimated defendant’s curb lane to call to the trucks to come out per over 25 or 30 miles hour but refused drive, of the he was struck. to state how much. Plaintiff the wavеd flashlight pavement, across the up held Defendant, driving a home from work in arms and stop. waved for defendant Country 6-passenger 1963 Ford sta- Sedan Other than the waving plaintiff arm admits wagon, stopped stop tion had light the attempt he did not at all to move from the at Ninth Street behind a car. After the time he first saw defendant until was he northwesterly proceeded light changed he struck. in on Keo the second lane from the curb moving approximately with the traffic four McGuire, Clarence employed then lengths to five car preceding behind the Reppert’s, was the driver waiting approached car. He testified that as he plaintiff’s signal come garage from the Reppert building the area he noticed eyewitness onto anAs Keo. he heard on, lights preceding brake car come squeal, around, tire glanced defend- saw lengths when three car he two or behind ant’s car сoming impact. and the He esti- change a gradual started lane into the curb mated speed defendant’s when he first saw approximately at rear lane. When “roughly him as per around 30 miles bumper car that or was stopping hour”. moving person stopped defendant noticed headlight east near the front right Behl, employed L. by the business Jack car. was unable other Defendant said he next Reppert’s, door south of was the other be- plaintiff that moment see before eyewitness. building From this he first stopped stopping cause the car saw car “coming defendant’s out of hit his view. Defendant obstructed his lane, swerving into the middle lane” and hard, some but brakes the car slowed estimated defendant going between 25 plaintiff right front center. with its struck but would say was 35 as he right fender over the front Plaintiff went felt without getting the car himself and the car for a distance as and was carried trying it exactly. would know impact, causing after the continued to move recovery. seeks Defendant’s injuries judgment for which he best to his speed marks left wheel was 25 miles an “it estimated his hour or could pedestrian crossing roadway at “Any maybe. don’t I a little more been pedestrian tunnel or over- along point where moving not sure. was am I know. I crossing provided has been pedestrian head cross-examination traffic.” On with yield all right-of-way vehicles go- shall have been thought he could defendant roadway. upon the at the most. and 30 ing between 25 foregoing “The in this rules section have from the direct evidence In addition application no under the conditions stated eyewitnesses, defendant and two plaintiff, pedestrians in Section 30-33.01 when are George W. opinion plaintiff offered prohibited crossing desig- at certain defend- Brown, speed, that expert as to places.” nated per hоur traveling miles car was ant’s began and 38 the skid marks at the time municipal These pat- code sections are first the brakes miles hour when 321.328, Codes, terned after section Iowa applied. provides: indicated, alleged defendant II. As “Crossing at other than crosswalk. “in negligent amended answer Every pedestrian crossing roadway Keosauqua or cross- walking within Street any point other than within a marked cross- ain than in a crosswalk ing same other walk or within an unmarked crosswalk 30- Sec. violation of business district at an yield intersection shall the right of Moines, Municipal Des Code of 33.01 of way all vehicles ex- ” * * * yield failing and “in cept that cities may and towns restrict such way to vehicle right defendant’s a crossing ordinance. Keosauqua when was within “Any pedestrian crossing roadway at a Street, than in a marked or unmarked other pedestrian where a tunnel over- crosswalk, 321.328 in violation of Section pedestrian head crossing provided has been Code and 30-33 Section yield shall right to all vehicles *6 Municipal said Code.” roadway. specifications plaintiff’s negli- Other of “Where signals traffic-control in are not gence asserted in answer are involved operation any place at not an intersec- appeal. in this pedestrians tion any shall not cross at place except in a marked crosswalk.” Code, Municipal Section 30-33.01 “ 1962, objec- into read the record without ‘Crosswalk’ portion means that of a tion, provides: roadway ordinarily included within the prolongation or connection of the lateral adjacent Crossing. Between “Prohibited lines intersections, or, sidewalks at sig- intersections at which traffic-control pedestrians “Any operation, portion are in shall not nals roadway of a distinctly any place except at in a crosswalk. indicated pedestrian cross by crossing lines other or pedestrian roadway cross a other markings shall No on the surface.” Code dis- than in a in business section 321.1(55). crosswalk trict.” stated, As there was no marked cross- provides: walk on at
Section 30-33 Keo and there were Eleventh no sidewalks on Eleventh from which an Every Pedestrian Yield. “When Shall unmarked might crosswalk be established. any point at pedestrian crossing a or than within a marked crosswalk other III. Defendant assigns as the first error at an inters crosswalk within unmarked relied on for reversal the overruling of his yield all right-of-way section shall motion for directed verdict judgment roadway. upon the vehicles notwithstanding the verdict. He contends 988, Hilton, 993- negli- In was Stewart plaintiff that as a matter of 640, pedes- a 637, we held the mu- by gent violation reason requir- 321.328, section 321.328 set trian’s violation of section nicipal ordinances and pedestrian a marked cross- proxi- ing a not in a supra, negligence this was out an inter- crosswalk at walk or unmarked injuries. mate cause of his is yield right-of-way vehicles section plaintiff’s negligence is The contention negligence per se. the ac- (1) facts by established was why district, this should (2) logical There is no reason in cident a business occurred municipal ordinance not be the rule when a (3) plaintiff was in the street chapter is vio- adopted pursuant a crosswalk. lated. occurred undisputed the accident It Thierman, supra, 214 Iowa Kisling defined in section
in a business district as 915-916, we “stat- said he was 243 N.W. 321.1(57). Plaintiff concedes by these under utes and ordinances such as in a as that term is defined crosswalk prescription parties legislative are agree all discussion statute and by law impact. fixing Keosauqua precaution, at the time of Street suitable negligence legal excuse of an ordinance negligence. lation directly tiff, ter of law reason of been merely negligence and the defendant’s contention stitutes substantial suant submitted So told far generate Establishment of decided the ordinance as we are Code section by the other However, se. whether hand, court. evidence of question aware, issue as to contends these this does not negligent and statute. 321.328 violation these facts jury undisputed vio we have never adopted constitutes plaintiff’s as a properly without Plain reach facts mat pur- con plied). under the as to observe to the low of the standard of Co., Jensvold [*] “ “ observe the statute, care thus fixed ordinance, has shown ** that a failure speed jury that if the defendant [*] holds violation of * [*] he is circumstances, of standard court Chicago trains is requirements of * * * guilty legal by law is care is warranted 712-713, observe of care ” excuse for Great negligence negligencе, (Emphasis city negligence. the standard it must fol- Western thus fixed the statute ordinance failed required *7 per se. failure saying unless sup- R. exception the of violation With 668, 671, 221 Long, v. Iowa In Wilson meet requiring section vehicles of 321.298 482, 484, we find this: 266 N.W. way ing half the traveled give each other to the which constitutes turning right, that a vio- repeatedly held “We have merely prima violation negligence, facie fixing a or ordinance lation of a statute reg statutes legal without excuse other of certain required under standard of care as ulating negligence the is law of the road negligence circumstances constitutes Thierman, 214 Kisling a matter of law. v. to ob- legal excuse for failure se unless 554; 911, 552, 915-916, Iowa 243 N.W. the statute requirements of serve the 1034, Peterson, 1031, Florke v. 245 Iowa sup- (Emphasis ordinance is established” Court, 372, 373; v. Cunningham 65 N.W.2d plied.) 298; 292, 654, 664, 248 Iowa 82 N.W.2d Press, Inc. 905, X 899, Refrigerated Sheffert, 96 As Kroblin Kohler v. 250 Iowa Ledvina, did not before 915; supra, plаintiff 911, Refriger v. and Kroblin N.W.2d 229, court, he here contend Press, nor does X the trial Ledvina, ated Inc. v. making anything com- 234, 133, the evidence shows 127 136. N.W.2d
851 considered, impossible. adopted He of the character here pliance with the statute pursuant thereto, negligence per is legal excuse. se. makes no claim of 1227, Davis, appears 231 IV. Whether a matter as of In Boardman “It 608, appears this: 1232, 611, violated 321.328or the mu- 3 N.W.2d § nicipal pleaded ques- ordinances uniformly held ordinances another corporate requiring tion and effect within consideration. same force legislature.” passed hy the laws limits do Although conceding he in the street district, of a business not in a crosswalk an is that prevailing view any impact, plain- of kind at the time of here referred to the character ordinance of tiff contends neither 321.328 section nor a statute. distinguished from is not to be municipal ordinances on de- relied 519, Glenn, 88 So.2d 264 Ala. Simpson v. application. fendant have of 327-328; Terminal 326, Greyhound 44, Thomas, S.W. Ky. 209 Louisville v. plaintiff’s first consider contention We Furniture 478, 479; v. Hartman Tralle 2d proceeded he made onto Keo 952, 418, 217 N.W. Carpet Co., 116 & Neb. certain there no in the curb traffic 93, 113 955; DuBois, Ohio St. Schell lane and traffic the middle lane had 1917A,710; Mc L.R.A. N.E. stopped, him yielding to and he thus had 362, Co., 71 S.D. Milling Cleod v. Tri-State right be there. Am.Jur., 485, also See noted, paragraph As previously first ; page 842 Negligence, section C.J.S. municipal both sections 30-33 Torts, on Prosser 19(3); and Negligence § ordinance 321.328 of the state statute 191-203, col Ed., pp. for Third section pedestrian crossing road- requires “every jurisdic from other lection of authorities way at a other than within a marked tions. an cross- crosswalk within unmarked yield Nugent walk at intersection shall relies on cites and Defendant upon S.D., right-of-way to all the road- decided vehicles Quam, court, plain- way.” which involved by a divided mo- by a
tiff-pedestrian struck who was argues outside crossing a street when tor vehicle purpose remain in the street avowed district business the crosswalk purpose the movement stopping municipal provid- A ordinance Mitchell. northwesterly-bound vehicles Keo road- pedestrian crossing “that every ed employer’s pull might so his trucks out in a point than marked any other street, driveway private from onto crosswalk an unmarked crosswalk or purpose right- yielding not for right- yield the end a block shall roadway. of-way upon vehicles pro- roadway, of-way to vehicles not relieve provision shall vided that this argument. There is merit in defendant’s duty the driver of vehicle from plaintiff stepped When in front of safety pedes- care for the exercise due stopped lane into vehicle middle *8 majority vio- trians.” The held lane, light flashed his and waved the curb negli- constituted lation of this ordinance arms, only purpose he had one such law and of gence as a matter of vehicle, stop not mind—to defendant’s ad- deprive him character to yield these to it. The establishment of comparative vantage Dakota of the South the undisputed facts did not involve credi- entitle negligence statute and to defend- bility of witness. ant to directed verdict. failed plaintiff are to hold
Whether we yield right-of- the legal as a matter of to without hold violation We depends of way defendant’s vehicle an to or ordinance of section 321.328 excuse 852 letter; upon the as if and applicability
course the stat- statute were within the of thing of is not and within the letter the statute ute ordinances. it the within the statute unless is within support In of contention further intention of * legislature. the [Citations] that neither the statute nor ordinances >> * * undisputed it that apply argues roadway”, but “crossing he was the statutory “The rule fundamental of only lane be- proceeded had to the middle and, pos construction is ascertain if to step curb lane taking fore the the into sible, pur give effect the intention impact. before pose expressed legislature the the statute.” 251 Klug, whether In re Estate question The basic seems be 603, 1128, 1133, 600, Iowa 104 “crossing” in the statute N.W.2d word ordinary quoting from given sig- be 82 Statutes 321. See ordinance is its § C.J.S. 245, Norris, 236, also Grant v. 249 Iowa passing nificance of side to from one 261, 266; Dic- N.W.2d Selken v. Northland other. Webster’s New International 85 1046, 1053, Co., 249 tionary, (Second Ed.); Cross Ins. Iowa 90 N.W.2d 25 C.J.S. 33, 29, 388; Spencer City page Pub. v. 15. Co. 47, 633, Spencer, 51, 250 Iowa 92 N.W.2d -, Sueppel, In Iowa 260 Severson 635; Pharmacy ex State rel. Board of -, 284, 281, 152 we said: N.W.2d 725, 721, McEwen, Examiners v. 189, 191-192. interpreting “In statute we look to accomplished, sought object the evils to be Hocking Rehnquist, Ill.App.2d In 100 remedied, purpose to be sub- be or the 417, 337, 341, 241 N.E.2d under a similаr place served and a reasonable requiring pedestrian statute yield ef- liberal best construction will right-of-way, it giving was held that the purpose fect rather than which will its one pedestrian crossing instruction ” * * * defeat it. [Citations] justified undisputed where was pedestrian previously completed cross- Des Moines 321.328 Section ing driver before defendant’s adopted pursuant ordinances thereto came the scene. said The court safety es promote highway intended to concerned, “in so far as defendants were care re tablishing a minimal standard of simply man standing either quired persons crossing on foot a road edge on or of the main traveled interpretation given portion of the highway”. object. See The furtherance of Thomas, In Newton Cal.App.2d Required Jaywalker, “Care” Drake 762, 748, 503, 511, 291 P.2d decedent was L.Rev. standing on the street side three two Burch, Refining Co. v. Sinclair pаrked feet from his car talking mem- we of his family bers in the car. Measure- find this: ments impact showed the inches from the held car. court primary interpreting “The rule in whether proved these measurements effect to give statute is ascertain and decedent had started to cross street legislature. intention of [Cita- * * * or whether his movement of 8 to 20 inches tions] hearing was due to fright recoil from manifest “It is a familiar rule that the the brakes and seeing the car rushing down prevail over legislature intent will on him was jury. a matter used; import the literal of the words *9 intention that a thing which is within the We thus extremes, have the two in one of the is as injured lawmakers much within pedestrian completed had differently, a statute put “To the matter possi- involved crossing and the other sensible, work- given practical, a should be moving a distance bility pedestrian’s of a logical construction. able opposite [Citations] toward feet less than two * * * have roadway, courts where of the side law matter of as a say to refused n n n H the circumstances pedestrian under a roadway. a
crossing an stat- “The intent enact unworkable imputed legislature ute is not to be half crossed over had plaintiff here But expressly statutory language unless roadway. to us It seems 39-foot a * * * it. requires [Citation] person say that a hairs be splitting because he not crossing ute street Myhre v. engaged and ordinance from curb under has not Peterson, in the circumstances crossing to curb do not cover traversed 233 Or. and that the stat- roadway the entire a partial here. merely P. the statute is 300-301, we said able [470] “In Kruck v. “ * consequences permissible only [*] [*] 475-478, ambiguous Needles, supra, 259 Iowa avoidance N.W.2d or of doubtful of unreason- [296] where In position. 1004, supports our merely 2d meaning. statutory This means that argued that motorist that case defendant properly construction is when the invoked in as the apply did statute a similar legislative ambiguities acts contain such “pedestrian cross not a jured may obscurities that reasonable minds dis- The meaning. roadway” within its ing the agree meaning. or be uncertain as their ” * ** employee, railroad plaintiff, a facts reveal [Citations] part depot, walk required leave the requiring Code section 4.2 liberal near Front Street Salem across construction in to give order effect to the track deliver order the railroad purposes and objects ordinances statutes and the fireman on locomotive. message to promote seek support is further for inter duties that he was to return to his After preting section 321.328 the municipal in the depot. the evidence Under adopted pursuant ordinances thereto as had plaintiff he light most favorable to crossings roadways applying under point where feet from the traveled six the circumstances here. word “cross being order before struck. delivered the ing” as used therein was not intended to contention rejected The court defendant’s ordinary be limited to significance. its that the did not cover such Oregon statute partial crossing. hold otherwise result in To would “un- reasonableness well as absurd conse- Fulton, Iowa, 162 N.W.2d Janson quences” when the wording statute 438, 442-443, expressed princi- similar we require A holding does it. seeking legislative ples applied to be person statute apply does not when a expressed in statute: intent as only completed quarter, foot any must statute “The construction of third, a half or less than an amount sensibly and be reasonable and must entire curb-to-curb crossing being before carrying out a view of fairly made with impractical struck would be an construc- the legislature intention of obvious tion. enacting it. familiar, rule of “It is a fundamental We hold the been that, fairly statutory pos- if construction told that as matter evidence sible, resulting unreason- construction showed crossing when struck was consequences well as absurd ableness as in violation of the statute and * ** will be negligent. avoided. ordinances and was [Citations] *10 854 442; 87, -, 438, further contends under Iowa 148 N.W.2d Clubb
V. Osborn, Iowa, 318, assignment proximate his first “a v. 149 322. error N.W.2d cause” was a matter of law. established as these rules but main- Defendant concedes exceptional cases re- is those
In several recent decisions we have tains this one of plaintiff’s neg- peated proximate proving cause where his burden of the definition Restatement, Second, Torts, ligence proximate cause has been section from and the carried as a matter of law issue 431: as one not have been submitted negligent legal “The conduct is actor’s fact. cause of harm another if his conduct (a) plaintiff escape cannot argues He bringing substantial factor in about is a heavy voluntarily this he entered fact harm, rule of law (b) and there is no traffic, lane the second stream of crossed to liability relieving actor from because emp- lane was at a moment when the curb negligence manner in which his has lane, ty, stopped car in the second the lead Goff, resulted in the harm.” Frederick v. paus- curb lane then re-entered the without 629; 624, 290, 298, Iowa 251 100 N.W.2d it clear when he must ing to make sure was 930, 942, Sayre Andrews, 146 259 Iowa ap- might be have known another vehicle 336, 344; Cooney, N.W.2d Davidson lane; even after dis- proaching in the curb 823; 1278, 1283, 819, 259 Iowa 147 N.W.2d in the curb covering defendant’s vehicle Nielsen, Iowa, Van Aernam v. 157 N.W. lane, himself opportunity with an remove 138, 143; Wathan, Iowa, 2d and Naxera v. by step danger merely taking back- 513, 521, 159 N.W.2d citations these and ward, so; plaintiff did not instead do cases. attempt waved his arms an unlawful yield right-of-way; “ make defendant * * * brought actions [I]n presence place hit his at the he was involving accidents which on or occurred proximate at the time actions defendant, subsequent July 4, 1965, the being hit. cause of plain if he negligence relies complete plain tiff as a defense or bar to agree. do not Insofar as the We recovery, pleading tiff’s has the burden of concerned, proximate issue cause and proving negligence of was a question was a of fact to be decided proximate injury damage.” cause of the jury. issue, As this is not the ex Gosselink, 115, , Schultz v. 260 Iowa — ceptional where the case facts are so clear 437-438; 434, Witt, 148 N.W.2d Burch v. undisputed, relation of cause 127; 221, -, 126, 260 Iowa 149 N.W.2d apparent every and effect are so candid Passot, 501, -, and Harlan v. 260 Iowa mind, that may fairly but one conclusion 150 N.W.2d section 90. See Code 619.- Fordyce, drawn therefrоm. Lawson v. 632, 641, 301, 306; Iowa 12 N.W.2d Lindquist Co., Ry. Des Moines Union Generally, questions proximate 356, 362, 123; 239 Iowa jury; only excep are for cause Ry. Co., Dunham v. Des Moines they may tional cases be decided 421, 427, 578, 582, and citations 344(f), par. matters See Rule law. opinions. in these R.C.P. error, assigned Under the VI. second by overruling of an the absence admission his alternative motion for new trial, party, it repeats argument urged the adverse is not often that a defendant party proof upon assignment, under having the burden of his first negligent issue establishes it as a matter of law. as a matter of law reason of Lowden, municipal Frideres v. his violation of ordinance 396, 397; Goeders, 321.328, supra. N.W.2d Estate of section both set out *11 accidents, is, the braking, that the mode of been have jury should He contends the acceleration, deceleration, con- method of a matter of negligent as plaintiff was told trol, steering, shifting, weight distribution negligence wаs they such and if found vehicles, strength the of and materials injury, their ver- his proximate cause of necessary types forces cause certain to he for defendant. dict should and deformation so on.” Brown had IV, in holding Division In view of our a safety testified about five times as con- in conten- is merit defendant’s supra, there analyst. sultant or traffic trial court assignment. The under this tion alter- defendant’s failing grant in erred to by hypothetical This was followed new trial. native motion for with, upon question ending “Based these alone, you facts and these facts do have an assignment re- his second VII. Under automobile, opinion speed as to in ad- asserts error lied on defendant also yes and answer that no.” After answer- testimony George mitting opinion ing opinion, he had such Brown asked on skid marks. speed Brown as to based W. it, point to state which defendant ob- quali- properly not assert that jected He does “for the reason that it calls an for case ex- may any not in expert fied witness opinion and conclusion of witness on a unob- speed to of an press opinion an as subject which proper matter is not the ar- on skid marks but vehicle based expert testimony, served and further because no testimony Brown’s gues proper the foundation for foundation has been laid in this rec- insufficient, qualifications both as to an expression opinion ord for this field and as speed expert as an in this subject matter, to witness on this hav- not based; opinion upon facts which ing competent express shown himself left in the that the court and opinion any opinion this base such or to actually possessed the Brown dark whether reasonable scientific basis.” The ob- opinion jection testi- knowledge which was overruled.
mony properly based. could After and an- Brown had been asked Degree in had a Bachelor’s Mr. Brown questions swered one or two additional de- post graduate degrees general science fendant added answer the wit- “[T]he metals) metallurgy (study in structure of opin- ness thus far that demonstrates physiology body). the human (study part upon hearsay ion based in docu- em- taught in these fields. He was He has ment of some association that is not evi- ployed part Department time at the of Civil dence and as to which the defendant has University Engineering of Iowa opportunity had no for cross-examination privately as a professor an assistant validity.” its safety City traffic consultant to trial. over nine months before objection This was sustained after asked, experience your court “From any past experi- When asked if he you you have can an give testified to ac- vehicles and their regarding ence motor opinion speed as to of this vehicle at he an- types tions on of surfaces various lay the time it started to down skid marks swered : you you do”, have said can the wit- into the “I have conducted research yes. ness answered He was then cautioned court, acci- may give causes and effects of motor vehicle an opin- “You such dents, you may give somebody and when conduct a research You ion. what has program that considers the basic event written as the coefficient of friction or is, else, something something accident individual because this is history, accident, you account the must take into counsel a chance cross-ex- does have operational in its They of the vehicle amine. have a chance cross- do behavior you, your characteristics which is done research if you examine so want to state may ty opinion you objecting as an do at this offer of evidеnce for expert so particu- reason must out in what time.” particulars lar or the foundation is deficient permitted Brown was then estimate may adversary opportunity so speed defendant’s at 31 and 38 miles remedy defect, alleged possible. if previously hour as noted. *12 * * Entsminger, *.” State v. [Citations] Iowa, 160 N.W.2d 482-483. there is evidence concedes eyewitness and himself plaintiff, his objection question “The to the ‘as justify jury finding him which would calling opinion for an and conclusion of his negligent reason of violation of essentially witness’ is worthless stand ordinance, ar- speed 25 mile an hour but ing alone as fails call to the attention of opinion as gues admission of Brown’s to the trial any specific ground court to for speed per particularly hour was of 38 miles objection. Opinion and conclusion evi prejudicial on bearing because of its the vi- solely dence is inadmissible on that tal issue He contends proximate cause. ground. specific Some reason its for ex if the believed defendant must be duty clusion stated. It is hour, traveling per plaintiff’s 25 30 to miles point counsel particular to out the defect presence point at the was struck and his he Bengford or defects.” Corpora v. Carlem clearly proximate conduct would be a cause tion, Iowa, 865. injuries ample of his time since he had move; whereas, they if believe agree We fundamental facts traveling greater defendant was permitted opinions, not be to rest on Brown, speeds estimated fail- conclusions and hearsay evidence. Brooks might proxi- ure to move not have been a Gilbert, 1164, 1169, mate cause lack because of of time. 309, 312. argument persuasive. is not In view necessity of the aof new trial At per 30 hour miles defendant would be we therefore consider objection defendant’s trаveling 44 feet approximately second. only as directed witness’ lack of 38, approximately feet, At 59 a difference qualification express an opinion on the of less than the average length. car In the speed matter of inferred from skid marks. first instance ap would have had proximately react, one second to in the Dougherty In Iowa, Boyken, N.W. other approximately .75 of second. 2d expert we defined an “as one qualified by study, who training, or ex appeal On defendant calls attention perience particular in a subject field of or many hypothetical facts omitted from the gives special endeavor which him knowl which he maintains were essential edge permits him form a definite foundation, sufficient such as condition of opinion of his own on persons matters lack asphalt wet, dry surface of or Keo— ing knowledge such training or cannot cor icy, surface, the amount of wear its its rectly decide. Am.Jur.2d, Expert and composition rough smooth, or the tire — Opinion Evidence, 523; page section condition of defendant’s vehicle and its Evidence, 457, page 98.” § C.J.S. weight. However, objection urged at trial defendant did not out these If expert has witness
factual firsthand opposing omissions to the court or knowledge facts, of material as when a counsel.
physician has injured examined an plain tiff, We have said may reversible error describe what he has seen and predicated cannot be general give ob expert therefrom, inferences such jection that proper no foundation has been as the cause probable duration of the laid for opinion. admission “A par- condition. Speed equals square times firsthand 5.5 root has expert no
When issue, product drag of distance fac- times the situation knowledge of ” facts, then tor.’ investigation made has no securing convenient the most Lacy, Cases, In Automobile Accident ask him skill is to his scientific benefit of Reconstruction, 578-579, pages Scientific opin give facts assume certain we find: assump such inferences view ion “ * ** Evidence, section measuring McCormick on addition to tions. skidmarks, speed visible to estimate order investigator must know: testimony not admissible Expert friction “(1) (drag the coefficient of qualified is shown the witness unless *13 factor) between tires and the road sur- the opin upon he bases the facts which his and ; face so a witness are sufficient to enable ion if road percent grade the the the “(2) express opinion an qualified inclined; surface is and Hardwick conjecture. a mere more than N.W.2d Bublitz, v. “(3) changes such as extreme variables 886, 889. weight, in temperature, excessive vehicle surface, foreign substances the road оn expert warrant use of “To weather conditions.” * * * re elements are testimony, two At author sets out basic page 581 the First, subject of the inference quired. formula. distinctly related to some must be so knew the showing Brown There is no science, occupation profession, business or necessary determine the minimum data average lay beyond be ken of stop original speed of a that came to vehicle second, man, the witness must have the formula by skidding, whether knew experience in skill, that knowledge such or speed used in or the variables computing appear calling field or as make that .Perhaps in involved this calculation.. opinion probably his or inference will aid so, factors, if doesn’t Brown knew these The the trier in his search truth. (cid:127) us. appear from record before in derived knowledge may some fields be alone, practice reading from in some from “Before it can evaluate ex case, commonly the alone, or as is more pert’s opinion, know what it must Evidence, su from both.” McCormick Boyken, Dougherty su is founded on.” Morgan, Basic pra, 13. also section See Iowa, 495; pra, at Poweshiek page 223. (1962), of Evidence Problems Mut. Ins. County Nat. Bank v. Nationwide Co., Iowa, N.W.2d supra, 254 Iowa Bublitz, Hardwick v. 888-889, we 1257-1258, 119 N.W.2d expert opin An in expressing “Judge approval from apparent quoted with ion facts should recite considered Court”, pub- in Traffic and Prosecutor opinion at his not arriving set out The American Bar Association lished hypothetical. This eliminates the Institute, Northwestern Traffic and The hearsay danger expert that the will consider University, Stannard Professor James in arriving support at his conclusions. In Baker, Research: Director of Dougherty Boyken see and Poweshiek Nat. Bank v. Nationwide Mut. Ins. County speeds from skid- “The calculation of Co., suprа. both the dis- by a formula when is done marks drag factor the slide and tance of This for- have been
pavement determined. admission or exclusion expert opinion testimony largely is: rests mula judgment upon except of the trial court. This all roadway dis- vehicles may as a cretion ceases where the record shows cities and towns such a cross- restrict qualified added). matter the witness ing (Emphasis of law ordinance.” opinion or facts which the is based provisions clearly These are limited to are Hardwick v. Bublitz and insufficient. jaywalking. They certainly do prohibiting Dougherty Boyken, supra. both prohibit person stepping into the on the side street enter driver’s We hold the foundation car, parked alighting a bus and walk- qualifications speed Brown’s to determine ing place at a than a the curb other anof unobserved motor vehicle was insuf crosswalk, walking along in or standing ficient under this recоrd and the admission edge perhaps standing of a opinion of his anwas abuse of discretion. near a disabled vehicle. statutes Other Perhaps aon retrial evidence of this wit may prohibit walking and ordinances such qualifications may ness’ sufficiently de or standing considering but we are here veloped opinion make admissible. only prescribed pro- duty under the The case is visions Code section 321.328 ordi- Reversed remanded for trial. new nance 30-33.01. MOORE, All except concur alleged and had the burden Justices *14 BECKER, JJ.,
LARSON proving plaintiff violating who dissent. these was
provisions. undisputed The evidence is crossing roadway. was not a He MOORE, (dissenting). Justice in roadway limiting was the pur- the I respectfully dissent. pose assisting employee a fellow in backing a truck into the east lane of Keo I. The majority adopts defendant’s con- avoiding an neither in- accident. He tention that provisions under the of Code аttempted roadway”. tended a nor “cross section 321.328 the section 30-33.01 of process He in jaywalking. was not the Municipal Des person Moines a Code the street not in a crosswalk in a business strongly disagree I do not with the cases district is negligent as a matter of law and by majority. They factually cited the are jury the should be disagree so instructed. I Hilton, distinguishable. In 247 Stewart v. with a holding such 988, under the facts here. 637, ad- was mittedly walking wih her sister a across agree I that of a violation law of the street in Toledo. road, including city valid ordinances, with- excuse, out legal is negligence per se with S.D., Nugent Quam, In v. the exception, one not applicable here, as 371, man, plaintiff, elderly an had left a by established our Kisling oft-cited case of supermarket carrying groceries and was Thierman, 911, v. 915, 916, 243 almost across street the when struck de- 552, N.W. fendant’s vehicle. Plaintiff admitted he crossing was the street. provides: Section 30-33.1 pedes- “No trian shall *crossa roadway other than in In Thomas, v. Cal.App.2d Newton 137 a any crosswalk in (Em- district.” business 748, 503, 291 P.2d there was a conflict of phasis added). plaintiff’s evidence as to whether decedent
Code section provides: 321.328 “Cross- parked had left the car near which he was ing at other than Every pe- crosswalk. standing in the walking street and started destrian crossing any roadway across the to a street cafe where he in- other than within a marked crosswalk or question tended to go: The court held the within an ttnmarked crosswalk at an in- crossing of whether street he was the when yield tersection shall right struck defendant’s vehicle was for the
859 cities, plaintiff’s our excep- hold did not choose to make an refused to jury. The court regard, tion that court as a matter cannot do negligent was decedent At so.” In similar to 30-33.1. other the court words held under ordinance areа “We 511, P.2d, states: between curb and 291 the court railroad was page do, roadway within say, as ask us statute. We have no defendants cannot such facts presumption de- unusual the evidence shows or such matter of law as a in the crossing case at bar. in the act of hit when cedent cross intention to A mere street. The California two cases cited in the Curran, 116 crossing. Kuist See quote Thomas, Newton supra, hold Nor can 404, 409, P.2d 681. 253 Cal.App.2d contrary opinion the majority here. In in the person standing said that a Curran, 404, supra, Kuist v. Cal.App.2d 116 Dennis v. Gon- crossing it. See street is newspaper P.2d court held P.2d 55.” zales, Cal.App.2d standing vendor of a six-lane middle highway not in process crossing Ill.App.2d Rehnquist, 100 Hocking street and was error instruct the standing plaintiff was N.E.2d duty vendor yield the right of car his wife’s beside way to defendant’s automobile. highway’s on the parked by defend- when he was struck shoulder The record here without discloses nо held there was truck. The court ant’s dispute plaintiff had no intention to1cross plaintiff was to show tending evidence roadway. question In submitting the court erred lower crossing road negligence for violation requested instruc- giving defendant’s Code section 321.328and ordinance 30-33.1 cross- pedestrian to the effect tion gave court defendant more than he was crosswalk ing marked unmarked in a entitled to. the facts issue Under Illi- yield to approaching vehicle. must been not have submitted to the *15 standing plaintiff in nois court did not hold but prej as to was without defendant it negligent as a matter was o udice. that the was Its statute holding law. was As the facts shown. applicable under II. witnesses estimated de- Several pointed majority opinion, the out speed in fendant’s excess of 25-mile defendants court said: “In far so hour limit. admitted he as. concerned, plaintiff simply man was going 25 witnesses more. Some edge standing either or at the speed as high estimated defendant’s as 35. highway.” main travelled portion The skid marks defendant’s vehicle were long. least 46 feet Peterson, Or. Myhre v. employee, agree opin- a railroad I plaintiff, laid foundation P.2d in Salem testimony of Front ion Doctor Brown should across Street walked had on a testimony, to a fireman message complete. have His been more and delivered the curb however, receipt returning to and the cumulative and was locomotive The rail- thereof, my opinion, prejudicial car. so by defendant’s when struck had Plaintiff require as to a reversal. Street. ran down Front road with possible as far as the street crossed perfect A trial possible. is not Defend- he was contended present and the train ant a fair trial. the in- crosswalk within the returning court held tersecting street. I affirm. would right issue entitled to court jury. The submitted BECKER, JJ., join presum- LARSON legislature, “the observed streets of dissent. do run on trains ably knows