*1 Kuehn, of Betty administratrix estate Clara Kuehn, de ceased, appellee, v. al., appellants. et Novaleen Jenkins
No. 49796. (Reported 610) in 100 N.W.2d *3 January 12, 1960. April
Rehearing 8, 1960. Denied Archerd, Draheim, Clarion, Loth, & and Birdsall Alan Dodge, appellants. for Fort Bennett, Dodge, appellee. for
McCarville & Fort Betty Kuehn, 21-year-old woman, single Thompson, J. iff instantly killed a collision between the automobile passenger she was and a two-ton truck owned Jenkins, Henry defendants L. Novaleen Jenkins Jenkins Trucking operated by Company, and Feed the defendant Claude Junior Dishman. collision about 6:30 occurred a.m. July Clarion, street intersection in Her at a Iowa. administratrix, brought an action for Kuehn, as mother, Clara At the same time Clara daughter’s estate. damages to collision, brought in the automobile Kuehn, the driver of the injury for in her own behalf defendants against the action resulting in a verdict together, were tried damages. The eаses $25,000 in her herein in the sum judgment plaintiff companion In appeal. Defendants as administratrix. action aside for the mother was set $5000 verdict case the Jenkins, Kuehn v. appealed. See the court and she separately, al- handled appeals were 604. The 100 N.W.2d opinion In we consider single record. this though both refer to a appeal in administratrix’ case. only the defendants’ west, Eighth east and runs Avenue in Clarion First Eighth Street was 18 feet 10 south. runs north and Street gutters on First blacktop wide, and between inches dispute sharp There is a wide. feet inches Avenue was which, be- place, took the collision where in intersection examina- requires detailed importance, a somewhat of its cause testimony. tion corner of on the southeast Kuehn, residence was
Mrs. whose Eighth into her car intersection, that she backed testified with First the intersection and headed north toward Street taking per hour. She was eight or miles Avenue at about ten Betty employed. telephone where office the decedent to the west Kuehn of the east and only 109 feet from the center It was of First Avenue. driveway center to the intersection straightened I started Mrs. Kuehn testified: “When * * no cars or vehicles *. There were out, heading north *4 almost a block. street, I I could down the street and started. see I could see got point I where As I moved the car north a I from Then looked 9 inches beyond the house feet curb]. [57 approaching. were No cars right and looked to the left. curb], from 16 feet got When I even with the sidewalk [about right was Mom,’ and here the truck Betty yelled, out, ‘Look I on the stop was my I on When I came put brakes. there. had not My car on other side. street, side of the the south mov- car was not My line of the intersection. crossed thе center applied I the brakes ing of the because at the time accident 722 doing hit stop the truck us. He was at least dead when
was at a maybe further hour, more.” She testified 35 miles to 40 * * * quarters three down the defendant Dishman “was about street, quarter past the on the of the middle street south side north being In of on the side of the place at least. street * * * way side. I he half over on the south was on street was * * * moving, my side of the There were no other vehicles street. parked Eighth; standing or on east of that street was the street entirely front, clear on the north The left hand the like side. right truck, the fender of came front front the into the fender consciousness, of my car.” Thereafter and the next she lost thing remembered herself out the picked up she she middle my of the street. She “remember course did not what car took * * * impact. Betty lying from the moment the next to on on Eighth the the the curb north side Street corner * * * facing Avenue First east.” along Photo 4 with posi- Exhibit shows intersection tion they of the vehicle when came to rest after the collision. ear, except entirely Kuehn left wheels, for the parking facing east at the southwest corner of intersection. The truck with body facing west, a stock next to the north curb of First Avenue about feet west from center of the intersection involved. There were black tire skid marks east of Eighth extending inches, lane Street about feet which witnesses said They appear were made car. Kuehn D, Exhibit which sharp curving also shows tire marks to the west and spots several wet were said be from radiator again fluid. dispute. Here Fletcher, there is Mr. Merle testi- fying plaintiff, “I on pave- said: saw some skid marks ment coming up part way from the south across intersec- tion”, and in question, answer to you “Can tell us where thе north end those skid marks ended with reference to mid- dle of “Well, the street?” said, say he would was a foot or two south (Referring center street.” First Ave- nue.)
There were also tire First which extended marks Avenue from truck back to the intersection. Exhibit shows them curving lane, first to lane, then to the north south and then *5 they disappear. The at near the debris defend the intersection explains by saying he knocked from his ant Dishman them temporarily seat behind the lost control the truck wheel after he did not the collision. While he admits that see the At Kuehn car he “I on the north side the street. said: impact my north, don’t moment truck swerved to per know how 20 and 25 miles My going far. between truck was hour go gear. truck in that because as the can that fast possibly go gear Couldn’t hour in the over 30 miles an * * # running open low side of wide third. The truck was not * * * gear. gear The fastest is the fourth will go testimony probably per 40 miles hour.” There was other tending to confirm his truck had been driven in claim gear third on the low side.
The physical facts, by as related the witnesses and disclosed exhibits, testimony bear out the that these vehicles came together with throwing considerable force. In addition pound automobile it completely depositing around and over 35 feet from place contact, force smashed in the right front fender, assembly, flattened the front wheel and bent in the right front, lamp frame smashed the head left front and grill, and heavy apparently as the rear wheel of the truck climbed over lid, the rear trunk rear smashed the window and bent in roofing. B, 17, A, Exhibits and 18 much disclose these damages. hand, car was a total wreck. On the other the truck lamp, had a broken left head dent fender its scratch marks on body. the left side of The radiator was ruined and the jammed. door left the truck was Otherwise seriously damaged.
Except for Mrs. Kuehn and defendant Dishman there eyewitnesses were no collision, neighbors but testified they were said, awakened “I the “loud crash.” Mr. Fletcher thought freight was a train.” she Mrs. Fletcher said aroused by explosion.” said, “a Amsbaugh sound like an Tillie “It was thought terrible crash. I into the that a car had run trees on my comer.” Mr. Schmidt, who lived on third John lot west of said, intersection like two railroad “It sounded *6 * * * asleep, I had together. been was aroused bumping
cars sleep.” from jury charges pleaded to the court three
The trial submitted (1) of Failure defendant negligence against of defendants: in lookout other traffic proper a for Dishman “to maintain (2) “in truck at a street”; operating said use of said lawful in in per hour a district speed in of 25 residential excess miles roadway to yield one half of the city”; (3) failing “in to said passen- was á plaintiff’s in decedent automobilе which the ger.” position that there was
The court took learned trial plain of jury finding a favor to sustain substantial evidence agree. grounds, on we tiff all three and they alleged which assign Defendants number errors a Submitting grounds group They .(1) four are: into divisions. in- by evidence; (2) negligence not errors sustained structions; (3) trial, of instructions to an and refusal unfair trial, it; court palliate (4) excessive verdict which half because refused to' reduce to eliminate mother’s daugh- proximate concurring of her as a negligence cause ter’s death. defendants’ overruling
I. err The court did not evidence. motion to on claimed insufficient direct verdict based justifiable inferences favor Relative and material evidence face plaintiff course, accepted able be at their must, to jury. value in case is to determining whether the submissible In considering testimony be viewed claim thе must defendants’ Co., & light v. Vilas plaintiff. most Soreide favorable applicable 1139, 1143, 41, 44. rule is 78 N.W.2d The specifications plaintiff’s both of defendants’ Beckwith, freedom from v. contributory negligence. Hackman 791, 802, Barnard, 245 275, Mongar Iowa 282; N.W.2d 899, Hemmingsen, 904, 765, 775; Iowa Law v. 82 N.W.2d "When cited. Iowa 89 N.W.2d and cases negli- this Dishman’s is done we think evidence of the.defendant gence jury. sufficient submission question specification
II. pleaded of whether the keep submitted proper failure been lookout should have Kuehn, may shortly the driver the car answered.' Clara Betty riding, stopped Kuehn was testified that she on in which intersection, side and that the defendants’ truck the south there, struck her means must been driven on have point. proceeding -It left-hand side the street at that was proper position so on Avenue, west First that its north side of'the street as it crossed the:.intersection. This evi jury ques dence disputed; doubt a but there without tion, testimony strengthened by made Clara Kuehn’s evidence marks. skid evident,
Under these circumstances it if the *7 believed Mrs.-Kuehn, either the that Dishman did not see Kuehn car, lookout, means keeping proper was not or he willfully he ordinarily drove it.- into Motorists do not drive on the roadway left-hand. against sight side the traffic there..if they it; see if they drive, and do fair so inference that they have not properly been watchful Hackman arises. v. Beckwith, 791, 802, 803, 275, 245 282; Iowa 64 N.W.2d Pazen v. Transportation Des Co., 23, 27, 28, Moines 223 272 Iowa N.W. 126, 129. There' presumption injury willfully is no that an is by caused driving on ques left-hand -the The side of road. tion of lookout clearly was jury. one for the Complaint
III. is made the court’s instruction- on lookout, quote: “By ‘proper which we lookout’ is meant that lookout which would ordinarily be maintained reasonable prudent and person under same or like circumstances. ‘Proper lookout’ merely straight means more than look ahead or more seeing object. than implies being It watchful of things movements of the driver’s own vehicle relation to seen and which could have been discerned or seen the exercise of ordinary objectionable care.” nothing We find instruc this tion. In Law v. Hemmingsen, 820, 830, 249 Iowa 89 N.W.2d 386, 394, quoted we approval with from Pazen v. Des Moines Transportation Co., supra, 126, 23, 30, 223 Iowa N.W. 130: “The-term ‘proper straight lookout’ means more than to look ahead, or more seeing-the object. implies being watchful It than of .the movements of his own vehicle movements as well of the thing seen.” Waterloo, 63 N.W.2d in Becker v.
So being watchful “Proper lookout means 919, 923, we said: things as the other vehicle as well of one’s own movements care, prudence, watchfulness and involves the seeable, seen or person under prudent ordinarily careful of an attention 532, Haker, 250 Iowa See also Paulsen circumstances.” definitions, in- by these 50. Measured N.W.2d given adequate proper. struction predicated assigned IY. error which is to warrant the sub contention there was insufficient evidence .improper speed without merit. specification mission of is defendants’ Mrs. Kuehn time of the collision testified that at the hour, more.” maybe traveling truck “35 to 40 miles an severity of crash considering Without evidence testimony in made a damage by it, itself done this in a resi question speed. Admittedly on accident occurred permitted speed was miles dential zone where the maximum per hour. enough evi
V. So with the contention there was wrong permit driving dence to of the issue submission testimony side of the Mrs. that the truck was street. Kuehn’s left-hand, south, its when her side of the street it struck positive. supported evidence definite It is to some extent clearly made. jury question skid A marks her car. *8 re- VI. the predicate The defendants further error No. give Requested Instruction fusal the trial court to their 4, quote: which we right of duty yield
“4. It was Kuehn the the Clara to way from the any approaching at this intersection to vehicle danger of hazard, Bast so as to is constitute a or so that there times and to to look at reasonable collision; use reasonable care the places approach and and observe for the of such vehicles Her approach thereof if visible from reasonable observation. if it yield right way defendant’s truck failure to the to the or hazard, would approaching was so that it would constitute apparent to a reason- danger make a of collision which would be was person seeing what keeping able lookout reasonable of law.” negligence as a matter reasonably visible, would be “To Instructiоn exception [on lookout] A was taken: proper requested Instruction give the to refusal as to instructions 4, and give Instruction requested refused Because duty to lookout: respect a whole in the defendant’s advising the instruction entitled to have some defendant is tell them ear, as to jury right way over so of the truck’s and enable lookout might what or limit his gauge he regard reason- in did that to decide whether what he (Italics able; covered.” request proper and the is supplied.) any instruc- gave instructions point in its no
The at court section way. set out Code right of We directional tion on the 321.319: vehicles two entering intersections. Where
“Approaching or that highway so their or any public street approaching on collision, vehicle danger of is paths and there will intersect right of have the shall from approaching the other way.” hy telling its failure aggravаted fact,
In somewhat the court instructed “you are No. jury, in its instruction duty to legal under the same Clara Kuehn said required as was and caution care exercise the same standard Kuehn was said Clara Dishman, and that the the defendant regard to in provisions of law duty bound observe the were provisions far such operation as of motor vehicles so applicable of them.” to them each places quoted above part-of instruction first this duty to exercise parties plane regard on the same ordinarily of an care It true bound to use the care. each was circumstances; but, as we said prudent under person Co., 1337, 1341, 66 Peterson v. Union Motor Sales required same, is the N.W.2d while the standard always It is not so. necessary conduct to meet that standard us, before while varies with the circumstances. So the case required duty care, the acts party each had a to exercise due meet it were not the same. picture at supra, into this 321.319, Section comes entering point. approaching The conduct of driver *9 governed by section; intersection from the left should be this right. and so with on It the driver the is not an decree absolute immunity right-hand to the driver; weight. but it has VII. stop Requested We need not determine whether perfect Instruction No. was a The de statement the law. fendant driver on right, was the driver of the Kuehn ear on the court, left. This fact was called to the attention of the and it made known the desire of the defendants to have an rights instruction on their under section 321.319. This was repeatedly sufficient. We have recently so held. Lehman v. Iowa Highway Comm., State 77, 86, 251 Iowa 99 N.W.2d 404, 409, thorough contains a point, cita discussion with tion of numerous We not authorities. shall take the time space again needed to review them.
VIII. The fully рlaintiff’s trial court instructed theory of case, but refused instruct what must have been a highly important part of the defense. The directional way awas substantial matter to defendants. Whether it important was the point most in their favor we need de- termine ; certainly it was one is no claim clear item. There that any contributory negligence Kuehn, driver, of Clara imputable decedent, passenger. proper But it was show, could, defendants if they negligence that Clara proximate Kuehn was the sole cause the collision. The right-of-way directional surely in this statute material connection; by refusing com- to instruct court prejudicial mitted error.
The defendants’ answer case was the nature general of a necessary plead denial. It was not for them to injury damages solely negligence were caused party of a third case, this Kuehn. burden was at Clara —in plаintiff all times on that some show concurring defendants was sole or proximate at least a cause. Anything negatived this, entirely such as that fault was that of a party, proper general third shown to be under denial, and is support an issue the case if is evidence to there it. We have often so held.
In City Canning Co., Brown Rockwell
729 that appellant “The contention 110 we said: N.W. Company Globe the no as whether pleadings raised issue the suggestion is answered independent contractor was an such a might under liability, and denied that defendant its negligence any, was denial, negligence, show that responsible party.” some other 580, Co., 128 Iowa Cereal American Overhouser v.
See also 385, Kovar, 168 Iowa 115, 583, Chadima 113, N.W. reversed because ease we 391, 691, 693. In the latter 150 N.W. proof upon placed erroneously the burden the trial court had third that of a wrongful act was that the the defendant to show pаrty. S., Negligence, general is down in C. J.
The rule laid was “The that a co-defendant section fact page thus: denial general a may be under independent an contractor shown also true specially up; need not set and this a third injuries negligence to the were due defense * * person supplied.) (Italics rule, recognized this IX. The court seems to have trial Nos, did and 12 refer to because it in both Instructions its Kuehn, something or thought negligence of Clara that if the Dishman, other negligence than the claimed of the defendant proximate collision, could not plaintiff the sole of the cause pertinent To recover. Instruction 12 the defendants took exception, which we set out: any (a)
“To not Instruction 12: It does include Because: guide being or negligence instruction as of Mrs. Kuehn independent under intervening cause; and does state cause, what nor does circumstances that would make it sole any at makes state; other so the evidence least instruction but question requires this a court instruct for the on subject.” guide
But, instructed, gave jury no having so the court one required intersection, the conduct such at at way which the accident occurred. The directional an important case. issue element in It was an defendant’s upon question case. It directly bore own being Kuehn its proximate Clara the sole cause. On
motion, 321.319, might well have instructed the court section required supra. been to do so Whether would have determine; request request, of a we shall not absence ignored. made and failure to instruct a vital issue in result was a
defendants’ ease. We have so often said that the theories both parties they lawsuit, supported to a far as substantial so evidence, submitted, prejudicial error must be that it is *11 so, fail to do that citation of authorities seems needless. But Purity see City Hutchinson Ice Cream Co. v. Des Moines Rail- way Co., 890; 172 154 527, N.W. First Bank v. Iowa National Cook, 41, Seufferlein, Biggs 171 Iowa 153 N.W. v. 169; 164 A. 241, 507, Iowa 145 L. R. 1915F N.W. 673.
X. right-of-way The statute was material also question of lookout. think We this was called the court’s by Requested attention exceptions Instruction No. 4 and the whole, to give court’s refusal it and to the instructions aas set out above. exceptions point The out that the defendants were entitled right way to have the of directional defined so that the jury would “on might know he gauge what [defendant’s driver] or limit his lookout and enable the to decide whether what * * he did in regard was reasonable The standard of care was the same parties, for both but the acts conduct necessary to meet it were not.
The right-of-way directional places greater statute burden upon the driver on in keeping the left a lookout and seeing what is to be seen. We held in have series cases that the driver approaching an negligent intersection is as a matter of law if he does not look to his right plain and see what is in sight, any absent obstruction or speed vision excessive lights absence nightfall after of the right. vehicle his Olson v. Truax, 250 Iowa 900, 97 N.W.2d 905; Peterschmidt Menke, 859, v. 249 864, Iowa 89 152, N.W.2d 156; Jacobson v. Aldrich, 1160, 246 1170, Iowa 68 733, 739; N.W.2d Hewitt v. Ogle, 219 46, 49, 755, Iowa 50, N.W. 756. On other hand, we have said that the driver on right is not guilty of negligence so that a against directed verdict him is Kurtz, Roe left at all. v. not look to his does if he permitted 550; v. inclusive, 210 N.W. Hutchins 906, 907 to 203 Iowa 279, 280. NW.2d 515, 533, LaBarre, difference the conduct illustrate These cases required meet respectively, left and drivers on the ordinarily prudent person keeping standard of care instruction which denied an were defendants a lookout. But the in Law As said jury of this difference. we have would told the 386, 391, “It is 826, 89 N.W.2d Hemmingsen, 249 Iowa fullness on the with reasonable duty instruct court’s to> term, having no of a abstract definition issues, a mere controversy, is insufficient. particular application to the appli for correct only jury has guide afford the instructions cation the law to the facts.” parties that the instruction
In the bar the court’s case at same standard legal duty to exercise the were under the same only in the broad view that care, if while correct considered care, in fact ordinary use and reasonable each was bound to defining misleading further instruction connected with the in- at right-hand drivers required the conduct the left- collision of an intersection difficult to conceive tersections. It is *12 right-of-way in which an instruction directional case rights parties of required define the the would not be to statute if be upon each. But there such and the conduct incumbent cases; of this is not оne them. the by proper procedures,
XI. made defendants, The Kuehn, of car in driver contention that since Clara and be riding, which also her mother would decedent was any amount recovered entitled our one half of under statutes to recovery part of action, this her bar would to her own benefit. damages which would accrue negligence of Clara disagreed. Passing point trial court lacking in claim is yet proven, Kuehn has been we think the for of actions after provide merit. Our which survival statutes here, person entitled, death of so material far as important 611.20, Code 611.22 635.9. So far as sections and many years, and here, they part for have been a of our law by us as always sections and 611.22 been construed 611.20 have being provision is survival statutes. Section 635.9 a for dis- posal damages for wrongful recovered death. We set out each of these sеctions:
“611.20 All shall Actions survive. causes action survive brought notwithstanding be may person death entitled or liable to the same.” representatives
“611.22 or against legal Actions —substi- Any contemplated tution. action in sections 611.20 611.21 may brought, motion, may be court, or allow the action continued, against legal representatives be or or suc- cessors in interest of action be deemed the deceased. Such shall a continuing one, representative have or accrued such successor at the time it would have accrued to the deceased he legal had survived. against repre- If such is continued defendant, sentative a on him in notice shall served as original case of notices.”
“635.9 Damages wrongful wrongful death. When a act produces death, damages disposed recovered therefor shall be personal property belonging deceased, estate of the but if husband, wife, deceased child, parent, leaves shall not be liable payment for the of debts.”
We have said our statutes are survival statutes in Fitz- gerald Hale, 1197, 509, 247 Iowa 1194, 511; N.W.2d Gardner v. Beck, 68, 62, 67, 962, 965; Iowa 189 N.W. M’Coullough Ry. v. Chicago, Co., 528, R. I. & P. 524, N.W. A., S., 47 L. R. N. 23. Survival acts are distinguished from patterned Camp- Lord those statutes after Act, bell’s provide Stat. 9 Viet., that the ch. action is designated persons. maintained for the benefit As to the latter contributory negligence beneficiary generally held Restatement, 493; to be defense. section Torts, Annotation, 2 A. seq., L. R.2d 785 there com- et authorities piled.
But contributory under survival of negligence acts a beneficiary defense, general is not a under the rule. The dis pointed tinction Camp is Lord out the difference between bell’s upon it, Act statutes which and survival are modeled
733 out, is 611.22, above set 611.20 and sections our own acts like it is “Under Beck, supra, where said: v. in Gardner made clear of title to the cause holds statute, also, administrator our of though certain class estate, a of the action for the benefit preference protected given beneficiaries of the estate 635.9, supra].” section exemption an statute [now in made distinction discussed and the same question 750, 751, 445, 746, 749, Camarra, 210 311 P.2d Oviatt v. Ore. 645, 108 Conn. Margolis, in v. cited; with Davis authorities 55 Ry. Co., Ohio 144 Erie & Western 665; A. and Wolf v. Lake 517, R. A. 812. 708, St. 45 N.E. 36 L. pro- statute which the distinction between a
It is true that named of certain brought vides the for the benefit action shall persons, says and one which it is had for the benefit of the avails estate, following provision decedent’s a with the action go substantially shall the same class beneficiaries exempt event, it is from In either debts is somewhat tenuous. possible take, beneficiary, permitted profiting if will be negligence. his own the rule But we have established Iowa, juris- recognized in other generally the difference is dictions. disposed change We are not it.
Iowa under generally cases the rule that support cited survival negligence beneficiary of the decedent’s statutes estate wrongful is not a damages defense to an action for for his 752, death Frazier, 579, are Bradshaw v. N.W. L. R. 258, Rep. Wymore A. 86 Am. Mahaska 394, St. County, 545, 6 L. R. A. Iowa 43 N.W. Am. Rep. largely, St. 449. It is true seem turn these eases altogether, upon question negligence whether parents imputed is to be to minor there is this child. But language in Wymore recovery may ease: be that a “It this case will in conferring result an undeserved benefit the father, investigate.” but that ais matter which we cannot In parent, case of a Bradshaw it was held that the beneficiary estate, action was not a defense wrongful Iowa): death of (page a child. We 583 of 113 said “It is claimed part there was contributory negligence *14 girl, of parents part of the and the relatives deceased days ejectment. whom for a
with she remained few after Wymore County, This is defense in this case.” v. Mahaska not a supra, authority holding. for was cited as this in by Oregon Supreme
These eases were cited Court Camarra, supra; they Oviatt v. were discussed and it was they They support determined that the rule that court followed. entirely satisfactory con- are not for the rule that authorities tributory negligence beneficiary of not action is a defense an for wrongful death, they largely upon an- because seem turn point, question other and the us not now before was discussed analyzed, shortly disposed of, dogmatically, and was somewhat Capital each. authority we find in Romano But additional City Pipe 437, 440, Brick Co., & N.W. Iowa 68 L. R. A. 106 Am. an for Rep. St. 323. This was action wrongful by brought death an administrator, one defenses urged was estate beneficiaries of the decedent’s were nonresident our aliens and so entitled to the benefits of survival statutes. This court said: “That this cause action survived death, recovery by his and could be made the basis his personal representative, statutory expressly is stated provisions; damages expressly and it is also stated that recovered in such part disposed action are to as a his Now, estate. how, purposes we cannot this see action, it necessary heirs, such to determine who and as his heirs, will be entitled Ms what- estate, to distributive shares m ever it may be.” (Italics supplied.)
We conclude, on authority precedents our own the rule from encyclopedias jurisdic- cited texts and other tions, point sought to be defendants as made discussed in this division is not well taken.
XII. assigned Other errors deal with claimed misconduct of counsel. opening While state- things some said in the ment argument omitted, and in might final well been have necessity view of the of new trial we make no decision on point. So with the verdict, claimed excessiveness of since it necessary must be set aside on find grounds, other do not we question. pointed Because of the errors to determine the out VI, VII, VIII, IX, X Divisions the case is reversed and remanded for new trial. —Reversed and remanded. JJ., concur. Garfield, Oliver, Thornton,
Bliss, *15 JJ., J., and dis- 0. Garrett, Hats, Peterson, Larson, sent. respectfully (dissenting) dissent 0. J. must
Larson, —I by majority VI, VII, from in expressed Divisions views VIII, opinion. I IX, and X of the feel the trial court was not only instructions, fair and that but correct its defendants’ Requested objections No. 4 Instruction and their to Instruction No. 7 predicate as a basis on which to reversible error have no merit.- majority possessed
The seems with the idea that the trial unfair;- fully plaintiff’s court was it “instructed theory of case, on what must but refused to instruct have important been highly part defense(Emphasis sup- a of plied.) speculate “highly Thus it feels free to as to what was important” fact, to defendants. As a matter of few or no- evi- dentiary support facts tend to that conclusion.
The in plaintiff’s predicated clear issues on defend- case negligence ant’s failing keep proper lookout, a excessive speed, and right-hand failure to drive on own side of the his street. The important right so-called issue as intersection way and, was not I plaintiff, fact, raised do not find that her theory of the case According included such an issue. pleadings proof, accident, this was not intersection unless the Kuehn ear quarter of inter- entered the northeast section of Eighth Street, First Avenue and Clara Kuehn had no duty yield to a approaching vehiсle from the east and was acting in violation of 321.319, Code, section 1958. As view it, if, as Clara contends, the defendant’s truck struck the Kuehn automobile in quarter intersection, where southeast right she had a right be, to be and no the defendant had the issue as to who right way had the intersection at the would not be involved. majority says flatly right way that “the directional substantial matter to defendants.” Let us see how sub- a they
stantial it. The answer did considered defendants’ not set up right way, they the fact that its truck had the nor did affirmatively allege proximate that the sole cause of this plain- accident was that of the driver of the car in which riding. only tiff’s general decedent was The answer was denial. It attempted is true plats defendants to show that the Kuehn car slid process the First Avenue across center line stopping. only Even that evidence tended to substantiate the fact Kuehn, discovery thаt Clara wrongful Dishman’s approach east, from yielding way to him.
Under extraordinary these circumstances it is harsh and extension of the doctrine counsel suggests defendants’ the need for an instruction on a rather obscure remote issue may possibly general be included in denial, and offers slight some thereon, evidence recog- the trial court must at once *16 nize give the issue proper and correct and instruction thereon. Such should rule, not be the and under I the better authorities think it is not.
Counsel, when asking specific a refined or on instruction point such a he vital to case, believes his should be think required is by the request better rule to proper a correct and Upon instruction on that issue. what issue did counsel desire an instruction ? is It inconceivable experienced that learned and counsel herein would not know how to draft a clear and correсt instruction on right Obviously directional intersection way. that was not purpose Kequested his Instruction No. 4. To me the request appears to for an jury that, be instruction to the due to duty yield defendant right way driver’s traffic approaching .right, from performed duty his he had his only when right he looked approached to his as he the inter- section, and negligent therefore not in failing to see the Kuehn car approaching from the left. majority obviously is not sure whether defendants
were desirous of an on way instruction at an intersec- or lookout, tion attempts justify so it proper and hold requests. both require The result seems to courts trial
737 uncertain, incorrect instructions to see ambiguous, examine issue raise some obscure possibly may they if given. must be instruction proper quite general, feel, unsound. The rule rule, I
Such a give specific or may courts refined is that liberally stated most proper pronouncements clear, correct instructions resulting general from defensive issue involved on an of the law so, do nor has that been our compelled to They are not denials. Digest, 26, Volume in Third Decennial practice. See cases usual Trial, Key 260. given by must instructions the court
Generally speaking,
joined by
present no more than issues
fairly
reasonably
by
although
This is true
the evidence.
pleadings
presented
correctly
propositions of law be
instruction the
submitting
pertinent
to the evidence and
any instruction not
stated, for
prejudi-
improper,
would
by
pleadings
issues made
Juries,
Ed.,
Third
Volume
Instructions to
cial. Reid’s Branson
323;
Hansen,
Davis v.
1,
115, 117, pages 318 to
sections
2;
Co.,
Sanders Motor
583, 586,
1,
172 N.W.
Waldman v.
Iowa
555.
1139, 1149,
243 N.W.
Iowa
purview of
must be within the
Usually the instructions
Traveling
pleadings. Vernon v. Iowa State
issues raised
Emeny
597, 607,
696;
Auto
Assn., 158 Iowa
N.W.
Men’s
Neiderhauser,
143;
175 Iowa
157 N.W.
Redfern
Co. v.
457,
399;
Redfern,
454,
236 N.W.
Granteer v.
v.
Iowa
Thompson,
127, 132,
While the right-hand driving evidence as to the issues of speed sharply dispute, in was Dishman’s that admission. he maintained no proper posed reasonable and lookout to his left a serious for оbstacle defendants to overcome. Thus counsel get endeavored to lookout, favorable instruction as to and to finding avoid a regard aas matter of law. clearly It was not his desire to simple obtain a instruction as to way. right directional If asked, such had certainly been would given, have been under but these circumstances the fail- ure give it should prejudicial never be held Defend- error. ants were more to blame than the able trial court that fail- ure.
III. The majority states that aggra- “the court somewhat vated give its failure instruction on directional [to way] by telling the jury, ‘you its Instruction No. are instructed that the said Clara Kuehn under the same standard, legal duty to exercise the same care caution as required of Dishman, defendant and that the said Clara Kuehn duty bound to provisions observe the law re- gard operation of motor provi- vehicles so far as such ” sions applicable were to them or each them.’ no error find *18 Knehn, fact, says plainly In that Clara in it that statement. accident, bound to observe the party in the third involved vehicles, include provisions regarding motor which would of law about, 321.319, majority so concerned section section the jurors Code, Certainly today are drivers motor 1958. most requirements presumed vehicles or and know are know However, purpose of that of the section motor-vehicle law. way Instruction No. 11 that there was a was to tell the by injury escape liability could for the defendants all of Betty. Although single death of a sentence criticism my from points instruction out court, is unfair to the it contention if defendants mstruction as to wanted a refined provisions law, of a certain section of the motor-vehicle should have and would have for it. asked
On the hand, given other Instructiоn No. 11 the court as seems to me unnecessarily by repetition the burden stress plaintiff to negligence, any, show if was not the sole Clara’s proximate cause of No. 11 in its en- this accident. Instruction provided: tirety Betty undisputed in the evidence that the said Jane
“It is at the time riding a car driven Clara Kuehn Kuehn was question. You are instructed that collision place was, if Kuehn, any Clara there would negligence of the said if recovery in this case plaintiff-administratrix’s bar the proxi- Kuehn, any, said Clara if was the sole negligence of the injuries death. That plaintiff’s decedent’s mate cause of the was, Kuehn, any if there is, if the the said Clara in- proximate plaintiff’s cause of the decedent’s alone was distinguished being mere contribut- juries death, from ing concurring or cause. Clara Kuehn was
“In connection with whether the said any, negligent negligence, or and as to whether not her injuries рlain- proximate cause of and death of the sole contributing concurring decedent rather than mere tiff’s Kuehn was under cause, you that the Clara instructed said legal duty same same care and to exercise the standard required Dishman, that the caution defendant as was duty provisions said Kuehn was bound to observe Clara regard operation of motor law vehicles so far *19 provisions applicable as such were to them or each them. (cid:127) you “If find from all the evidence that the said Clara Kuehn negligent operation the motor vehicle which Betty the said Jane Kuehn riding, negligence and if such of the said Clara Kuehn proximate was the sole cause and not a concurring mere contributing injuries or cause of the plaintiff’s death of decedent, plaintiff-administra- then the trix would not be entitled your to recover and verdict should be for the defendant.” any reasonably juror
Could intelligent fail to understand was, instruction? It if anything, most favorable to the defendants.
The majority concedes that defendants failed to claim that any negligence of Clara Kuehn imported decedent, but it insists that right show, they defendants had a to could, negligence that the of Clara Kuehn proximate was the sole cause of the collision. That is the law. Instruction No. 11 made that right very clear to jury, but nevertheless the in both cases found Clara Kuehn was contributorily not even negligent, say to nothing of being solely responsible for the accident. After a careful examination of record, I think it is a shallow claim indeed, and one which there evidence, was no substantial negligence, Clara’s if any, proximate was the sole cause of this collision and decedent’s injury. fatal plaintiff carried her burden proof negli- as to the gence of Dishmаn, defendant which was almost conclusive of defendant’s failure keep proper lookout. The evidence is very persuasive that, even had negligent, Clara been proxi- mate cause, of at concurring least a proximate cause of the injury and death, was of the defendant Dishman. It was not claimed that the burden was on Dishman to show a party third was the sole cause, and Instruction No. 11 does not place so the burden. Thus, the authorities cited Division VIII of majority opinion in point not or controlling impor- tance. This is admitted in Division IX when it referred to court’s Instructions Nos. 11 and any 12. At rate it is clear to ignore give court did not or refuse me learned trial that the way, on directional proper refined or instruction granted not that basis. reversal should in Division X with the issue majority IY. The dealt paramount I of defendants their Re- feel was the minds quested exceptions made Instruction No. and their left, lookout court’s instructions. This issue as to to one’s cause, principal proximate the issue of sole was defendants’ con- cern. right-of-way
I am not that the directional statute satisfied places upon greater duty keep a a driver a lookout to his right than I to his left. am not in accord the statement that with majority have so we held that the cases cited hold. so If they justification do hold, so think there is no for such *20 majority decision. The admits the standard of care is the same parties both on approach They their to an intersection. must look ways both and clearly see that which was have visible. We never guilty negli- said one who look fails to to his left is not gence, majority infer, Kurtz, seems to even Roe v. Iowa 906, 907-910, 550; LaBarre, 210 N.W. Hutchins Iowa N.W.2d 280. I question seriously the holding guilty that one is as a matter law for not look- ing right, may to his failing he not be so held to look to his approaches left as he an safety, intersection. There no is reason logic in such a If statutory duty distinction. based a to do something perform duty, affirmative and he fails to that we have a different independent situation of lookout, that statutory violation, I which feel basis those decisions cited. I cannot subscribe holding to the that as obligation keep proper a lookout, greater duty there is a to look to the right than to the left.
If a statute duty may creates require another an additional standard of intersection, care at it seems to me requirement may lending create a situation itself to doctrine requiring counsel proper point- submit a instruction ing out specifically application of that standard of care which he appropriate claims under the circumstances. This defendants failed to do. major- correctly advanced
If I the rule understand ity, legal of a collision there can no action as a result within require that will not the extended a street intersection lines of way. directional give the trial court an instruction on so, To predicate on its failure to do further reversible error my opinion, law, costly good is for as here an extended and proceeding very questionable technicality, is set aside no decision is merits of the case. It rendered obvious my thought that, whole, court’s were taken as a instructions adequate correctly understood issues decided judgment them. would affirm the of the trial court.
Hays, Garrett, JJ., join Peterson this dissent. Beverly Franzen, Ann plaintiff-appellee, v. Dimock Gould & City
Co., corporation, defendant-appellant, Bettendorf, defendant-appellee.
City Bettendorf, cross-petitioner-appellee, v. Dimock Gould
& Co., corporation, cross-defendant-appellant.
No. 49877. (Reported 4) in 101 N.W.2d