Rosas v. Danilson

387 N.W.2d 767, 1986 Iowa Sup. LEXIS 1170
CourtSupreme Court of Iowa
DecidedMay 21, 1986
DocketNo. 85-1073
StatusPublished

This text of 387 N.W.2d 767 (Rosas v. Danilson) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Rosas v. Danilson, 387 N.W.2d 767, 1986 Iowa Sup. LEXIS 1170 (iowa 1986).

Opinion

McGiverin, justice.

This is an appeal by defendant Kolontar Enterprises, Ltd. (Kolontar), the operator of a dram shop called “The Distillery”, from an adverse jury verdict in a combined negligence and dram shop action arising out of a car-moped accident in which plaintiff David Rosas was injured. Upon a consideration of the controlling issue presented for review, we affirm.

At the time of the accident, on May 21, 1983, plaintiff Rosas was employed as a night security guard at Des Moines Area Community College. His work shift ended at 12:00 a.m., so he began riding his Honda Express moped to his home in Des Moines shortly after midnight. The moped had lights that automatically came on when the vehicle was in operation. It also was equipped with a red taillight in the back, which was lighted at the time of the accident, and turn signals which flashed if they were activated by the driver. On level ground, the moped would run at a maximum speed of approximately twenty-five miles per hour.

Plaintiff was proceeding southbound on highway 69, a two-lane highway for two-way traffic, and operating the moped at its maximum speed. The posted maximum speed on the highway was fifty miles per [768]*768hour. There was no posted minimum speed.

Earlier that evening, defendant John Danilson, who is not a party to this appeal, left home at approximately 6:00 p.m. to attend a party sponsored by the student government of Des Moines Area Community College. The party was being held at The Distillery, a bar owned by defendant Kolontar. While there, Danilson was served by defendant’s employees approximately twenty “kamikaze” drinks, each containing one shot of alcohol.

Around midnight, Danilson left defendant bar. Witnesses who observed Danilson testified he appeared to be intoxicated. Danilson got into his car and proceeded southbound on highway 69.

Approximately one and one-half miles from the Des Moines Area Community College campus, as Danilson was traveling down the highway, he struck Rosas’ moped which was being operated ahead of him in the right-hand traffic lane. As a result of the impact, Rosas was thrown from the moped into the ditch and injured. Danilson testified at trial that he never saw plaintiff until after the accident occurred.

Thereafter, plaintiff brought this action against the car driver, Danilson, on a negligence theory and also Kolontar, the operator of the dram shop where Danilson allegedly had become intoxicated, on a dram shop theory. See Iowa Code §§ 123.92-94 (1983).

At trial, defendants Danilson and Kolon-tar presented evidence suggesting that plaintiff had been negligent by traveling too slowly on highway 69 and by not taking additional precautions to insure that he was visible to other drivers.

Kolontar requested a jury instruction, based on Iowa Code sections 321.285 and 321.294 regarding the duty of a driver to maintain a minimum speed on the highway. The court refused to submit the instruction. The court also refused to apply the principles of comparative negligence so as to permit the jury to compare the alleged negligence of plaintiff with that of Danil-son and, thus, to shield the dram shop operator from liability for injuries not proximately caused by the intoxicated driver, Danilson. See Iowa Code § 123.92. The jury returned a verdict which awarded plaintiff $30,915 against both defendants. Judgment was entered on the verdicts. A motion for new trial was duly filed, Iowa Rule of Civil Procedure 244, by defendant Kolontar, and overruled by the court. Ko-lontar now seeks our review. Defendant Danilson has not joined in this appeal.

The issues presented for our review are: 1) whether the district court erred in refusing to instruct the jury regarding the duty of a driver of a motor vehicle to drive at a minimum reasonable speed on a highway; and 2) whether the district court should have permitted the jury to compare the negligence of the intoxicated driver, Danilson, with any alleged negligence of plaintiff Rosas in considering the responsibility of defendant Kolontar for plaintiff’s damages. Kolontar concedes that both of these issues must be decided favorably to it for its appeal to be successful. Because our disposition of the first issue is controlling, we need not address the second.

I. Minimum speed. Defendant Kolon-tar contends there was sufficient evidence of plaintiff’s negligence to support Kolon-tar’s requested minimum speed instruction. The requested instruction was as follows:

The law provides that any person driving a motor vehicle on a highway shall drive the same at a careful and prudent speed not less than is reasonable and proper, having due regard for the traffic, surface and width of the highway and of any other conditions then existing.
The law also provides that no person shall drive a motor vehicle at such a slow speed as to impede or block the normal and reasonable movement of traffic except when reduced speed is necessary for safe operation or in compliance with law.
A failure to comply with these provisions of the law constitutes negligence.

The main thrust of defendant’s argument here is that plaintiff impeded the normal flow of traffic on the highway in the opera[769]*769tion of his moped. Kolontar contends plaintiff thus violated Iowa Code sections 321.285 and 321.294. Further, defendant contends on appeal that plaintiff should have driven the moped along the shoulder of the road and that he should have taken various additional measures to make himself more visible to other drivers. However, Kolontar requested no jury instructions along these lines and did not object to the court’s jury instructions on those bases. Defendant argues that the question of alleged contributory negligence is one for the jury and rarely may be decided as a matter of law. Iowa R.App.P. 14(f)(10).

In order to determine the propriety of defendant’s proposed jury instruction regarding plaintiff’s alleged contributory negligence, we must examine the relevant governing traffic statutes. See Iowa Code ch. 321. Thus, we will determine the respective rights and duties of the plaintiff and Danilson on the roadway.

A. Statutory authority. At the time of the accident, plaintiff was operating a motorized bicycle, known as a moped. Such a vehicle is defined in Iowa Code section 321.1(3)(b) as follows:

“Motorized bicycle” or “motor bicycle” means a motor vehicle having a saddle or a seat for the use of a rider and designed to travel on not more than three wheels in contact with the ground, with an engine having a displacement no greater than fifty cubic centimeters and not capable of operating at a speed in excess of twenty-five miles per hour on level ground unassisted by human power.

(Emphasis added.)

In order to legally operate a moped, the operator must be licensed. Iowa Code § 321.189(2). Plaintiff was a licensed operator. The possession of such a license “entitles the licensee to operate a motorized bicycle upon the highway.”

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Page v. Tao
289 S.E.2d 910 (Court of Appeals of North Carolina, 1982)
Jacobsen v. Hala
125 N.W.2d 500 (Supreme Court of Iowa, 1963)
Gray v. POPLAR GROVE PLANTING & REFINING CO., INC.
321 So. 2d 919 (Louisiana Court of Appeal, 1976)
Fairbanks v. Travelers Insurance Company
232 So. 2d 323 (Louisiana Court of Appeal, 1970)
Aanenson v. Engelson
124 N.W.2d 360 (Supreme Court of Minnesota, 1963)
Morse v. Johnson
401 N.E.2d 654 (Appellate Court of Illinois, 1980)
Seaton v. Spence
215 Cal. App. 2d 761 (California Court of Appeal, 1963)
State v. Bartusek
383 N.W.2d 582 (Supreme Court of Iowa, 1986)
Hooten v. DeJarnatt
376 S.W.2d 272 (Supreme Court of Arkansas, 1964)
Cheek v. Weiss
615 S.W.2d 453 (Missouri Court of Appeals, 1981)
Fairbanks v. Travelers Insurance
234 So. 2d 194 (Supreme Court of Louisiana, 1970)
Markiewicz v. Greyhound Corp.
358 F.2d 26 (Seventh Circuit, 1966)

Cite This Page — Counsel Stack

Bluebook (online)
387 N.W.2d 767, 1986 Iowa Sup. LEXIS 1170, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rosas-v-danilson-iowa-1986.