Kuehn v. Jenkins

Larson, 0. J.

(dissenting) — I must respectfully dissent from the views expressed by the majority in Divisions VI, VII, VIII, IX, and X of the opinion. I feel the trial court was not only fair but correct in its instructions, and that defendants’ Requested Instruction No. 4 and their objections to Instruction No. 7 as a basis on which to predicate reversible error have no merit.-

The majority seems possessed with the idea that the trial court was unfair;- that it “instructed fully on the plaintiff’s theory of the case, but refused to instruct on what must have been a highly important part of the defense(Emphasis supplied.) Thus it feels free to speculate as to what was “highly important” to defendants. As a matter of fact, few or no- evidentiary facts tend to support that conclusion.

The clear issues in plaintiff’s case are predicated on defendant’s negligence in failing to keep a proper lookout, excessive speed, and failure to drive on his own right-hand side of the street. The so-called important issue as to intersection right of way was not raised by plaintiff, and, in fact, I do not find that her theory of the case included such an issue. According to the pleadings and proof, this was not an intersection accident, for unless the Kuehn ear entered the northeast quarter of the intersection of First Avenue and Eighth Street, Clara Kuehn had no duty to yield to a vehicle approaching from the east and was not acting in violation of section 321.319, Code, 1958. As I view it, if, as Clara contends, the defendant’s truck struck the Kuehn automobile in the southeast quarter of the intersection, where she had a right to be and the defendant had no right to be, the issue as to who had the right of way at the intersection would not be involved.

*736 The majority says flatly that “the directional right of way was a substantial matter to defendants.” Let us see how substantial they considered it. The defendants’ answer did not set up the fact that its truck had the right of way, nor did they affirmatively allege that the negligence and sole proximate cause of this accident was that of the driver of the car in which plaintiff’s decedent was riding. The answer was only a general denial. It is true defendants attempted to show by plats that the Kuehn car slid across the First Avenue center line in the process of stopping. Even that evidence only tended to substantiate the fact that Clara Kuehn, on discovery of Dishman’s wrongful approach from the east, was yielding the right of way to him.

Under these circumstances it is a harsh and extraordinary extension of the doctrine that if defendants’ counsel suggests the need for an instruction on a rather obscure or remote issue which may possibly be included in a general denial, and offers some slight evidence thereon, the trial court must at once recognize the issue and give a correct and proper instruction thereon. Such should not be the rule, and under the better authorities I think it is not.

Counsel, when asking a refined or specific instruction on such a point he believes vital to his case, should be and I think is required by the better rule to request a correct and proper instruction on that issue. Upon what issue did counsel desire an instruction ? It is inconceivable that learned and experienced counsel herein would not know how to draft a clear and correct instruction on directional intersection right of way. Obviously that was not his purpose in Kequested Instruction No. 4. To me the request appears to be for an instruction to the jury that, due to defendant driver’s duty to yield the right of way to traffic approaching from his .right, he had performed his duty when he looked only to his right as he approached the intersection, and therefore was not negligent in failing to see the Kuehn car approaching from the left.

The majority obviously is not sure whether defendants were desirous of an instruction on right of way at an intersection or on lookout, so it attempts to justify and hold proper both requests. The result seems to require that trial courts *737 examine ambiguous, uncertain, and incorrect instructions to see if they may possibly raise some obscure issue upon which a proper instruction must be given.

Such a rule, I feel, is quite unsound. The general, rule most liberally stated is that courts may give refined or specific instructions that are clear, correct and proper pronouncements of the law on an involved defensive issue resulting from general denials. They are not compelled to do so, nor has that been our usual practice. See cases in Third Decennial Digest, Volume 26, Trial, Key 260.

Generally speaking, instructions given by the court must fairly and reasonably present no more than issues joined by the pleadings and presented by the evidence. This is true although in submitting an instruction the propositions of law be correctly stated, for any instruction not pertinent to the evidence and issues made by the pleadings would be improper, if not prejudicial. Reid’s Branson Instructions to Juries, Third Ed., Volume 1, sections 115, 117, pages 318 to 323; Davis v. Hansen, 187 Iowa 583, 586 , 172 N.W. 1 , 2; Waldman v. Sanders Motor Co., 214 Iowa 1139, 1149 , 243 N.W. 555 .

Usually the instructions must be within the purview of the issues raised by the pleadings. Vernon v. Iowa State Traveling Men’s Assn., 158 Iowa 597, 607 , 138 N.W. 696 ; Emeny Auto Co. v. Neiderhauser, 175 Iowa 219, 223 , 157 N.W. 143 ; Redfern v. Redfern, 212 Iowa 454, 457 , 236 N.W. 399 ; Granteer v. Thompson, 203 Iowa 127, 132 , 208 N.W. 497 . We have further held that issues made by the pleadings must not be broadened or changed by the instructions, whatever the scope of the evidence. Balik v. Flacker, 212 Iowa 1381, 1384 , 238 N.W. 467 .

II. The majority finds no error in the court’s Instruction No. 7 on lookout. It was correct, clear and proper. The court in that instruction told the jury: “The burden is upon the plaintiff-administratrix to prove by a preponderance of the evidence that the defendant Dishman operated the Chevrolet truck in proceeding upon First Avenue southeast without exercising reasonable care and caution under the surrounding circumstances, in so far as shown by the evidence, in the matter of keeping a lookout for others who might be traveling upon the *738 highway in question and in particular for the automobile driven by Clara Kuehn and in which the decedent Betty Jane Kuehn was riding; and if you find that the plaintiff has met such burden, then you should find the defendants negligent in the respect charged by the plaintiff; otherwise not.”

It was Dishman’s testimony that he failed to look to his left that caused defendants their greatest concern. He stated: “As I came down the intersection I was looking straight ahead. I glanced off to the side. Then I fawned my head to the North- — • didn’t see nothing coming; looked straight ahead again; collision. * * * I had turned my head and looked to the North, to my right.” He never once said he looked to his left, but did say as he approached the intersection, “I didn’t see any traffic moving on it [the street] at that time. I didn’t see any traffic approaching the intersection from the South before I looked North. * * # I first saw the Kuehn car after the collision.” (Emphasis supplied.)

While the evidence as to the issues of right-hand driving and speed was sharply in dispute, Dishman’s admission. that he maintained no reasonable and proper lookout to his left posed a serious obstacle for defendants to overcome. Thus counsel endeavored to get a favorable instruction as to lookout, and to avoid a finding of negligence in that regard as a matter of law. It was clearly not his desire to obtain a simple instruction as to directional right of way. If such had been asked, it certainly would have been given, but under these circumstances the failure to give it should never be held prejudicial error. Defendants were more to blame than the able trial court for that failure.

III. The majority states that “the court somewhat aggravated its failure [to give an instruction on directional right of way] by telling the jury, in its Instruction No. 11, that ‘you are instructed that the said Clara Kuehn was under the same legal duty to exercise the same standard, of care and caution as was required of the defendant Dishman, and that the said Clara Kuehn was duty bound to observe the provisions of law in regard to the operation of motor vehicles in so far as such provisions were applicable to them or each of them.’ ” I find no error *739 in that statement. In fact, it says plainly that Clara Knehn, the third party involved in the accident, was bound to observe the provisions of law regarding motor vehicles, which would include the section the majority is so concerned about, section 321.319, Code, 1958. Certainly most jurors today are drivers of motor vehicles and know or are presumed to know the requirements of that section of the motor-vehicle law. However, the purpose of Instruction No. 11 was to tell the jury that there was a way by which defendants could escape all liability for the injury and death of Betty. Although criticism of a single sentence from that instruction is unfair to the court, it points out my contention that if defendants wanted a refined mstruction as to the provisions of a certain section of the motor-vehicle law, it should have and would have asked for it.

On the other hand, Instruction No. 11 as given by the court seems to me to unnecessarily stress by repetition the burden on plaintiff to show Clara’s negligence, if any, was not the sole proximate cause of this accident. Instruction No. 11 in its entirety provided:

“It is undisputed in the evidence that the said Betty Jane Kuehn was riding in a car driven by Clara Kuehn at the time and place of the collision in question. You are instructed that the negligence of the said Clara Kuehn, if any there was, would bar the plaintiff-administratrix’s recovery in this case if the negligence of the said Clara Kuehn, if any, was the sole proximate cause of the plaintiff’s decedent’s injuries and death. That is, if the negligence of the said Clara Kuehn, if any there was, alone was the proximate cause of the plaintiff’s decedent’s injuries and death, as distinguished from being a mere contributing or concurring cause.

“In connection with whether the said Clara Kuehn was negligent and as to whether or not her negligence, if any, was the sole proximate cause of the injuries and death of the plaintiff’s decedent rather than a mere contributing or concurring cause, you are instructed that the said Clara Kuehn was under the same legal duty to exercise the same standard of care and caution as was required of the defendant Dishman, and that the *740 said Clara Kuehn was duty bound to observe the provisions of the law in regard to the operation of motor vehicles in so far as such provisions were applicable to them or each of them.

• “If you find from all the evidence that the said Clara Kuehn was negligent in the operation of the motor vehicle in which the said Betty Jane Kuehn was riding, and if such negligence of the said Clara Kuehn was the sole proximate cause and not a mere concurring or contributing cause of the injuries and death of the plaintiff’s decedent, then the plaintiff-administratrix would not be entitled to recover and your verdict should be for the defendant.”

Could any reasonably intelligent juror fail to understand that instruction? It was, if anything, most favorable to the defendants.

The majority concedes that defendants failed to claim that any negligence of Clara Kuehn was imported to the decedent, but it insists that defendants had a right to show, if they could, that the negligence of Clara Kuehn was the sole proximate cause of the collision. That is the law. Instruction No. 11 made that right very clear to the jury, but nevertheless the jury in both cases found Clara Kuehn was not even contributorily negligent, to say nothing of being solely responsible for the accident. After a careful examination of the record, I think it is a shallow claim indeed, and one upon which there was no substantial evidence, that Clara’s negligence, if any, was the sole proximate cause of this collision and decedent’s fatal injury.

The plaintiff carried her burden of proof as to the negligence of defendant Dishman, which was almost conclusive of defendant’s failure to keep a proper lookout. The evidence is very persuasive that, even had Clara been negligent, the proximate cause, of at least a concurring proximate cause of the injury and death, was the negligence of the defendant Dishman. It was not claimed that the burden was on Dishman to show a third party was the sole cause, and Instruction No. 11 does not so place the burden. Thus, the authorities cited in Division VIII of the majority opinion are not in point or of controlling importance. This is admitted in Division IX when it referred to court’s Instructions Nos. 11 and 12. At any rate it is clear to *741 me that the learned trial court did not ignore or refuse to give a refined or proper instruction on directional right of way, and a reversal should not be granted on that basis.

IY. The majority in Division X dealt with the issue which I feel was paramount in the minds of defendants by their Requested Instruction No. 4 and their exceptions made to the court’s instructions. This issue as to lookout to one’s left, not the issue of sole proximate cause, was defendants’ principal concern.

I am not satisfied that the directional right-of-way statute places upon a driver a greater duty to keep a lookout to his right than to his left. I am not in accord with the statement that we have so held or that the cases cited by the majority so hold. If they do so hold, I think there is no justification for such decision. The majority admits the standard of care is the same for both parties on their approach to an intersection. They must look both ways and see that which was clearly visible. We have never said one who fails to look to his left is not guilty of negligence, as the majority seems to infer, even in Roe v. Kurtz, 203 Iowa 906, 907-910 , 210 N.W. 550 ; Hutchins v. LaBarre, 242 Iowa 515, 533 , 47 N.W.2d 269, 279, 280 . I seriously question the holding that if one is guilty as a matter of law for not looking to his right, he may not be so held in failing to look to his left as he approaches an intersection. There is no safety, reason or logic in such a distinction. If based upon a statutory duty to do something affirmative and he fails to perform that duty, we have a different situation independent of lookout, that of statutory violation, which I feel was the basis of those decisions cited. I cannot subscribe to the holding that as to the obligation to keep a proper lookout, there is a greater duty to look to the right than to the left.

If a statute creates another duty which may require an additional standard of care at an intersection, it seems to me that requirement may create a situation lending itself to the doctrine requiring counsel to submit a proper instruction pointing out specifically the application of that standard of care which he claims appropriate under the circumstances. This defendants failed to do.

*742 If I understand correctly the rule advanced by the majority, there can be no legal action as a result of a collision within the extended lines of a street intersection that will not require the trial court to give an instruction on directional right of way. To further predicate reversible error on its failure to do so, in my opinion, is not good law, for as here an extended and costly proceeding is set aside on a very questionable technicality, and no decision is rendered on the obvious merits of the case. It is my thought that, taken as a whole, the court’s instructions were adequate and that the jury understood the issues and correctly decided them. I would affirm the judgment of the trial court.

Hays, Peterson and Garrett, JJ., join in this dissent.