Plаintiff, while riding in a car owned and operated by her husband, sustained serious personal injuries due to a head-on collision with a car driven by defendant’s decedent, Earl H. Turner. Turner died as a result of injuries sustained, and- this action is brought against his administrator to recover damages. At the close of all of the testimony there was a directed verdict for the dеfendant, and plaintiff appeals. Where reference is made to appellee it is intended to refer to the deceased driver, Earl.H. Turner.
*667 Appellant in her рetition asserts seven acts of negligence npon the part' of appellee. In substance, they present but two propositions: (1) Violation of section 321.285, Code of 1946, being the “assured-clear-distance-ahead statute”, and (2) defective and illegal lights. On this appeal the propositions or errors relied upon for a reversаl center upon the refusal of the trial court to submit these two propositions to the jury.
Many material facts are not in dispute. At about 10:45 p.m. July 10, 1948, appellant, her husband, Marvin Snоok, and two other people left the town of Iiumeston in her husband’s Ford coupé. Appellant did not drive a car and had no control thereof on the night in question. Leaving Humeston, they drove north on Highway No. 65. At a point about two miles north, they approached a car being driven by one Dean Schecter, which was likewise proceeding north at about forty miles per hour. The night was clear, but dark, and the pavement dry. When appellant’s car came within about thirty-five feet of the Schecter car, it turned into thе left lane, or west side, of the pavement for the purpose of passing, and when at a point approximately five feet to the rear and to the left of the Schecter car collided head-on with appellee’s car which was approaching from the north. Appellee’s car was at all times in its proper lane on the pavement.
The testimony in regard to the condition of the lights on appellee’s car is in sharp conflict. Testimony offered in behalf of appellant tends to show: that about ten days prior to the collision the appellee’s car was being operated with headlights that cast a dull yellow glow and threw but little light on the pavement in front of it; on the night in question and just prior to the collision appellee’s car was observed upon Highway No. 65 and that its lights were flickering on-and-off and casting a dull yellow to red light. Marvin Snook testified that he saw the Schec-ter car when he was about two hundred feet behind it; that he observed two dim, yellow-colored lights ahead which did not east a light ahead on the pavement and appeared to be about a quarter to a half a mile down the highway; that he pulled to the left intending to pass the Schecter cаr and observed appellee’s car immediately in front of him and about twenty-five feet away; that the dim yellow lights on appellee’s car deceived him as to their distаnce in front of him at the time he turned into *668 the left lane. Appellant, as a witness, stated that, as they started to pass the Schecter car she noticed two dim yellow lights ahead, which appeared to be about a half a mile away.
The Sehecters, as witnesses for appellee, testified that they observed appellee’s car as it approached them from the north; that its headlights appeared to be like those on any car and that as they approached it the lights were dimmed; that they cast a clear white light ahead.
The record clearly shows that appellant had no right of control over her husband’s car. Under this situation, contributory negligence of her husband, if any, is not to be imputed to her. Carpenter v. Wolfe,
I. Did the court err in failing to submit to the jury the issue of the assured-clear-distanee-ahead rule? We think not. This statutе (section 321.285, Code of 1946) provides that no person shall drive at a speed greater than will permit him to stop within the assured clear distance ahead, such driver having the right, however, to assume that all persons using the highway will observe the law. The words “within the assured clear distance ahead” mean the distance from which discernible objects, reаsonably expected or anticipated to be upon the highway, may be observed. Central States Elec. Co. v. McVay,
In the instant case appellee was in his rightful plаce on the highway. He was entitled to assume that anyone approaching him from the opposite direction would observe the law (in this instance, section 321.303, Code of 1946) which prohibits one from passing another car on the left unless it can be done without interference with cars approaching from the opposite direction. Aрpellant’s driver clearly violated this law and created a situation which would not reasonably be anticipated by appellee. As we said in Coon v. Rieke,
II. Did the trial court err in refusing to submit to the jury the issue of appellee’s defective and illegal headlights? We hold that it did.
Appellee in his brief and argument states that on the question of nеgligence there was some meager evidence which merited examination and scrutiny. The trial court in its ruling on the motion for a directed verdict stated that if any ground of negligеnce would be sustained by the evidence it would be as to the defective lights, but that if appellant’s driver saw the ' lights a quarter to a half a mile ahead, then the dimness of the lights, if estаblished, would not be the proximate cause of the collision. Thus we may examine this assignment of error primarily from the viewpoint of proximate cause. Negligence is the proximate cause of an injury which follows such negligent act, if it can fairly be said that in the absence of such negligence the injury or damage complained of would nоt have occurred. Gray v. City of Des Moines,
It is appellant’s theory that, due to the defective and illegal lights on appellee’s ear appellant’s driver was deсeived in estimating the distance ahead he had for safe passing of the Schecter car. This, in substance, is the assertion of a legal excuse by appellant’s driver fоr his negligence in violating the law as to the passing of cars on the left. Even though not pleaded, where there is evidence of a legal excuse for the violation оf a statute the question is one for the jury. Sanford v. Nesbit,
While appellant is not to bе charged with contributory negligence upon the part of her driver, she is to be charged therewith if it is found to be the sole proximate cause of the
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collision. If, howevеr, the appellee is negligent under the facts in this case, and but for such negligence appellant’s driver would not have been lulled into a sense of security and attempted to pass the Schecter car, then even though the negligence of her driver was a contributing cause to the collision, such negligence would not entitle apрellee to a directed verdict. In the case of Wolfson v. Jewett Lumber Co.,
For the reasons stated, the judgment of the trial court is reversed. — Reversed and remanded.