Wilson v. Jefferson Transportation Co.

163 N.W.2d 367, 1968 Iowa Sup. LEXIS 993
CourtSupreme Court of Iowa
DecidedDecember 10, 1968
Docket53104
StatusPublished
Cited by13 cases

This text of 163 N.W.2d 367 (Wilson v. Jefferson Transportation Co.) 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
Wilson v. Jefferson Transportation Co., 163 N.W.2d 367, 1968 Iowa Sup. LEXIS 993 (iowa 1968).

Opinions

BECKER, Justice.

This action grows out of a collision at the intersection of Bird Street and Second Avenue, north of Interstate 80 in Polk County on July 15, 1965 about 5:20 P.M. Plaintiff Wilson was driving north on Second Avenue, a four-lane divided street. He collided with defendants’ bus which had come through the Bird Street intersection and was athwart Second Avenue. Plaintiff alleged failure to yield the right of way, failure to keep a proper lookout, failure to obey traffic control signs and failure to have the bus under control. The jury returned a verdict for plaintiff in the sum of $25,000.00. Defendants appeal citing jury instructions and excessive damages as reversible error.

The nature of the intersection is quickly and accurately illustrated by plaintiff’s exhibit 3 reproduced herewith. The top of the picture is south.

[370]*370Defendants’ bus came off the overpassing superhighway on the ramp shown at the right center of the picture and approached underpassing Second Avenue on the inferi- or, stop-sign controlled street.

Plaintiff was proceeding north on Second Avenue. He saw the bus coming down off Interstate 80 on Bird Street: “ * * * I kept driving. I — it never dawned on me that the bus would pull out there and wouldn’t stop. * * * Q. Well, did you notice whether or not it stopped, or did it slow down, or what did it do? A. I really didn’t notice. I just assumed he didn’t stop, because he just rolled right out in front of me.” On cross-examination, plaintiff said he could not swear as to whether the bus did or did not stop.

Defendant bus driver testified he stopped behind another car at the stop sign in question. The car pulled out. He pulled his bus up to Second Avenue and stopped again. A northbound car on Second Avenue turned left into the median to cross the west (southbound lanes) and stopped for traffic. This forced defendant to stop with the front part of his bus in the median area. Since the bus is 40 feet long and the northbound slab 20 to 22 feet wide the truck blocked the entire traveled way.

On rebuttal George Ballard testified he took the same route as the bus. He stopped at the stop sign, crossed the east lanes of Second Avenue and turned left or south on Second. As soon as he turned he heard brakes screeching. He looked around and saw the car sliding. It hit the bus at the left rear duals. The bus was still moving when struck.

The patrol officer’s testimony established point of impact at one foot, one inch west of the east edge of the north bound lane of Second Avenue. Plaintiff’s car had laid down 71 feet of skid marks.

I. Defendants’ first assignment of error is there was insufficient evidence to justify submission of plaintiff’s allegation that defendant negligently failed to obey a traffic control sign. They first reason that the specification is nonstatutory, i. e., dependent on common law, because plaintiff did not plead the statute. Since rule 94, Rules of Civil Procedure was changed in 1963 by deleting the sentence, “But a pleading asserting any statute, or a right derived therefrom, shall refer to such statute by plain designation,” it is not necessary to plead the statutes upon which the pleader relies. State ex rel. LeBuhn v. White, 257 Iowa 606, 608, 133 N.W.2d 903.

The comment on this amendment to rule 94 found in the pocket part to Cook, Iowa Rules of Civil Procedure, Volume I, states: “This change is to assure judicial notice of Iowa statutes without reference thereto in the pleadings.” If the evidence justifies submission of the charge under the statute, the specification was properly submitted as a statutory violation.

II. Defendants argue the record taken as a whole and viewed most favorably to plaintiff reveals no substantial evidence that the bus failed to obey a traffic control signal.

We said in Turbot v. Repp, 247 Iowa 69, 74, 72 N.W.2d 565, 568: “The requirement that drivers on the side road stop and yield gives traffic on the through highway the right of way. As pointed out by the distinguished trial court, the duty to stop and the duty to yield are compound duties. The requested instruction would have separated them and improperly applied the no eyewitness rule to a portion of such duties only. Its refusal was correct.” See also Hittle v. Jones, 217 Iowa 598, 250 N.W. 689 and sections 321.321, 321.322, Iowa Code (1966).

Defendant attacks the foregoing authorities on the ground Turbot v. Repp, supra, only decided that the no eyewitness rule applied to neither facet of the statute in question. We think the above quoted paragraph was necessary to the issue decided and therefore not obiter dicta. In any event both sections 321.321 and 321.322 [371]*371require the motorist to stop and, having stopped to yield to motorists on the favored highway. A careful reading of the statutes indicate the disjunctive “or” is used only to distinguish between situations where yield signs are used in contradistinction to stop signs. The statutes as a whole require the compound duties noted above.

We find substantial evidence to justify a jury finding that either or both facets of defendants’ duties were violated. Plaintiff’s testimony, taken as a whole, permits the conclusion he first saw the bus at a distance of about 200 feet. If consideration is given to the relative distances of the vehicles, their length and all other material evidence, the jury might well find the bus did not have time to come to a full stop (or make two full stops as defendant driver testified) after plaintiff first saw it and also pull out to its position at point of impact.

We think there was sufficient evidence to justify the court’s submission of the issue of failure to obey a traffic control signal as negligence.

III. Defendant also complains of the court’s failure to instruct on speed in the manner requested. The court gave the standard instruction on speed, predicated on Iowa Code, 1966, section 321.285 which tells the jury that a motorist shall drive at a careful rate of speed having due regard for all conditions then existing. Defendants requested an instruction under section 321.-288 which would have told the jury that a motorist shall reduce speed when approaching or traversing an intersection unless he is already driving at a reasonable and proper rate of speed. The requested instruction sets forth the appropriate rule more fully than the shortened allusion here used and is correct as requested. The trial court apparently did not feel it was required in this case. We agree.

The section 321.288 statutory duty to reduce speed at intersections is in addition to the general rule set forth in section 321.285 that all motorists must drive at a reasonable and proper rate under the circumstances then existing. The court properly instructed on the latter facet of the case. The additional duty to slow down at intersections is ordinarily not applicable to motorists on through highways where intersecting traffic has the duty to stop and yield. The general considerations are stated in Paulsen v. Haker, 250 Iowa 532, 95 N.W.2d 47, 51-52:

“The true rule is that the statutory right of way is not a guarantee of safety, but that the driver on the protected road must use reasonable care under the existing circumstances for his own safety and that of others.

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

Related

Shams v. Carney
518 N.W.2d 366 (Supreme Court of Iowa, 1994)
Wadle v. Jones
312 N.W.2d 510 (Supreme Court of Iowa, 1981)
Larsen v. Cady
274 N.W.2d 907 (Supreme Court of Iowa, 1979)
Davis v. Crook
261 N.W.2d 500 (Supreme Court of Iowa, 1978)
Pitz v. CEDAR VALLEY EGG & POULTRY COMPANY
203 N.W.2d 548 (Supreme Court of Iowa, 1973)
Miller v. Scholte
191 N.W.2d 773 (Supreme Court of Iowa, 1971)
Plummer v. Loonan
189 N.W.2d 617 (Supreme Court of Iowa, 1971)
Doser v. Interstate Power Company
173 N.W.2d 556 (Supreme Court of Iowa, 1970)
Schmitt v. Jenkins Truck Lines, Inc.
170 N.W.2d 632 (Supreme Court of Iowa, 1969)
Miller v. Young
168 N.W.2d 45 (Supreme Court of Iowa, 1969)
Wilson v. Jefferson Transportation Co.
163 N.W.2d 367 (Supreme Court of Iowa, 1968)

Cite This Page — Counsel Stack

Bluebook (online)
163 N.W.2d 367, 1968 Iowa Sup. LEXIS 993, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wilson-v-jefferson-transportation-co-iowa-1968.