Opinion
William T. Connery, O'Connor, Thomas, McDermotts&sWright, Dubuque, for plaintiff-appellant.
Kenline, Roedell, Hoffmanns&sReynolds, Dubuque, for defendants-cross-appellants.
MANTZ, Justice.
The action is at law. Plaintiff brought suit against defendants for damages to his person and property growing out of a collision on September 21, 1949 on highway No. 20 in Dubuque, Iowa, between his car and a truck owned by the defendants and operated by an employee, also a defendant. His suit was based upon a claim of negligence of the truck operator. The jury returned a verdict in favor of plaintiff. The defendants filed a motion in two parts: first to enter a judgment in favor of defendants notwithstanding the verdict of the jury, and second, subject to the ruling thereon, grant a new trial. The court refused the first part of the motion and sustained the second part thereof and granted a new trial on the ground that the plaintiff did not sustain his burden of proof that defendants' driver failed to give a proper continuous signal preparatory to making a right turn under plaintiff's plea that the driver was negligent in such particular and that such negligence was the proximate cause of the collision. Both parties appeal.
There are two issues involved in the appeal. We will first take up and consider plaintiff's appeal from the ruling of the court granting defendants a new trial. Following that we will consider defendants' (cross-appellants') motion for judgment notwithstanding the verdict.
Before passing on the claims of the parties we will set forth from the record a brief outline or summary of the fact situation as it existed prior to and at the time of the collision.
I. The collision took place on highway No. 20 at a point where such highway intersects on the south with Fremont Avenue. No. 20 is 18 feet wide and Fremont Avenue at that point is 36 feet wide and enters No. 20 at an angle. The place of the collision was in the suburban part of Dubuque. The plaintiff's car, a Packard, was traveling east on No. 20. Riding with plaintiff were four passengers, all students at Loras College. They were in the rear seat. As it approached the intersection defendants' truck was ahead and traveling in the same direction. There was a flasher warning light at least 600 feet west of the intersection and it was then working and visible. On the post of the flasher sign were the words 'traffic signal ahead'. This flasher light was 96 feet west of the southwest corner of the intersection and 90 feet west of the point of the collision. It was dark and plaintiff's car had its lights on. As plaintiff's car came from the west its speed was estimated at 40 miles per hour, having been reduced to that speed from 60 miles per hour. There were no on-coming cars on No. 30. A stopped car was waiting to enter said highway from Fremont Avenue. It was close to the intersection and was headed in a northerly direction.
At a point 52 feet west of the west curb of Fremont Avenue there was a yellow highway sign bearing the legend 'speed limit 20'. This sign was there at the time of the collision and prior thereto.
II. Plaintiff's action was against defendants, alleging damages to his person and automobile on account of the negligent operation of a truck driven by Donald H. Shaffer, a defendant, and belonging to the other defendants. Defendants' motion for a directed verdict was overruled; the cause was submitted to the jury and a verdict returned in favor of plaintiff and against defendants for $15,000. Upon motion the court set aside such verdict and granted a new trial. The ground upon which a new trial was granted was as follows: 'Because the court erred in submitting to the jury the issue of the negligence of defendants' driver in failing to give a proper continuous signal preparatory to making a right turn for the reasons that (a) plaintiff failed to sustain the burden of proof that defendants' driver failed to give a proper continuous signal as alleged; (b) there is no competent evidence in the record to sustain said issue and warrant its submission; (c) plaintiff failed to sustain his burden of proof that such pleaded act of negligence was the proximate cause of the collision and plaintiff's damage.
The collision between plaintiff's car and defendants' truck took place in a suburban part of Dubuque, Iowa, and at the west side of the intersection above referred to. The truck and car were going east, the former in the lead. Fremont Avenue, where it enters No. 20 from the south, is on somewhat of an angle. When the collision took place a car belonging to one Hahlan and occupied by himself and family was standing facing the north on the east side of Fremont Avenue waiting to enter No. 20. The truck as it neared the intersection started to turn to its right onto Fremont Ave. and in doing so slowed up to a speed variously estimated from 5 to 15 miles per hour. The plaintiff's car coming from the rear tried to turn to the right of the truck and in so doing struck on its right side and rear almost demolishing the car and seriously injuring plaintiff.
Among the specifications of negligence pleaded by plaintiff was that the truck driver in making the turn from No. 20 to Fremont Ave. did not observe the statute in indicating his purpose to turn. We quote from the petition:
'Par. 12. That at said time and place the defendant, Donald H. Shaffer was negligent in the operation of the said motor truck that he was operating in the following particulars: * * * (b) In turning a vehicle from a direct course upon a highway before such movement can be made with reasonable safety. (c) In failing to give proper continuous signal preparatory to making a right turn in conformity with section 321.315, Code of Iowa [I.C.A.], said section being in full force and effect at the time of said collision.'
There were other allegations of negligence not material here which are not set out. We quote further from the petition:
'Par. 13. That the aforesaid negligence of the defendants and Donald H. Shaffer, was the proximate cause of the accident and plaintiff's damages and injuries * * *.'
The grounds of defendants' motion have been hereinbefore set forth. Briefly speaking the ruling of the court in sustaining said motion and in granting a new trial was the plaintiff had failed to sustain his burden of proof that defendants' driver had not, in attempting to make the turn, given a proper continuous signal as alleged in his petition; that there was no competent evidence to sustain said issue and warrant its submission to the jury; also, that plaintiff had failed to sustain his burden that such act of negligence was the proximate cause of the collision and plaintiff's damages.
Code 1950, section 321.315, I.C.A., deals with turning at intersections. Said section provides: 'A signal of intention to turn right or left shall be given continuously during not less than the last one hundred feet traveled by the vehicle before turning.'
The court in sustaining said motion reviewed the evidence bearing on said matter and held that the plaintiff had failed to sustain such issue and that the court erred in submitting it to the jury. We hold that the trial court did not err in so ruling.
The record shows that the turning sign was given continuously by an extended left arm indicating an intention to turn right from a point 125 to 130 feet west of the intersection. The driver of the truck, Shaffer, so testified, as did Robert Voels, who was at that time riding in the truck on the same seat with the driver. Both testified as to the then presence there of the 'speed limit 20' sign and the 'traffic signal ahead' as shown by Exhibits 3 and 4.
The plaintiff, while pleading the failure of the truck driver to give the continuous warning sign of his intention to turn, took the witness stand and in the language of the court, 'did not see fit to refer to the matter at all.' His witness, William Ward, the student passenger in the rear seat, said that he saw the truck but that he saw no turning signal given. No other witness testified for plaintiff on such point.
The burden rested upon plaintiff, not only to show negligence of the operator of the defendants' truck, but to further show that such negligence was the proximate cause of the collision and the damage. If the plaintiff fails to so show, the issue should not be submitted to the jury.
The witness Ward testified that he saw no warning signal given by the truck driver. This would be insufficient to base a submission of that question to the jury. Isaacs v. Bruce, 218 Iowa 759, 254 N.W. 57. In that case the district court submitted to the jury the issue as to whether or not a truck driver had given a signal showing his intention to stop. In that case, Kindig, J., 218 Iowa on pages 762, 763, 254 N.W. on pages 58, 59, reviewed the evidence and the authorities. In the opinion it appears that the evidence showed that a Packard car ran into the rear of a Ford truck. The occupants of the Packard did not know whether or not the driver of the truck gave a signal of his intention to stop. The truck had not stopped at the time of the collision. Its driver did not testify that the signal was not given. The opinion goes on to state that in the absence of such showing such claimed act of negligence should not have been submitted to the jury and that therefore it could not have been the proximate cause of plaintiff's injuries. As bearing on the question as to the giving of a signal as required by section 321.315. See Simmons v. Chicago, R. I.s&sP. Ry. Co., 217 Iowa 1277, 252 N.W. 516; Graves v. Chicago, R. I.s&sP. Ry. Co., 207 Iowa 30, 222 N.W. 344; Gross v. Humke Sanitary Bakery, 209 Iowa 40, 227 N.W. 620; Buser v. Morrison, 212 Iowa 31, 233 N.W. 28, and other cases. See also Pierce v. Heusinkveld, 234 Iowa 1348, 14 N.W.2d 275; Weber v. Hansen, 241 Iowa 904, 43 N.W.2d 766. While the last-cited case deals with the claim that the taillight of a car was not lighted, there a witness stated he didn't see any taillight. Therein the court refers to its holding in the Isaacs v. Bruce case, supra.
Plaintiff argues that no proper exception of objection was made to the instruction dealing with the claim of negligence made that the driver of the truck failed to give an appropriate signal of his intention to turn and that the failure was the proximate cause of the collision and the damage to plaintiff.
Instruction No. 2 given by the court dealt with the matters above set out, i. e., the failure to give a proper turning signal. The objection to such instruction was made before the same was given and on the ground that there was no proper evidence in the record to sustain the court's submitting the same to the jury. Plaintiff did not then question the sufficiency of the exception. In the motion for a new trial the same objection was urged; the court in its ruling simply ruled that plaintiff did not sustain the burden. At no time did the plaintiff question the objection or exception as being insufficient. We think the objection or exception was well taken and raised the question properly. It simply called attention to the fact that there was no evidence to show that the truck driver did not comply with section 321.315 in making the turn into Fremont Avenue. Plaintiff had the burden to show such item of negligence. The exception or objection was taken before the instructions were read to the jury. We are unable to see where there was a failure to comply with Rule 196, Rules of Civil Procedure, 58 I.C.A. What was said in Pond v. Anderson, 241 Iowa 1038, 44 N.W.2d 372, is inapplicable here. Where there is a total lack of evidence on a certain matter to so state in an objection seems to us properly raises the point. In support of the foregoing, attention is called to Simmons v. Chicago, R. I.s&sP. Ry. Co., supra; Upp v. Darner, 150 Iowa 403, 130 N.W. 409, 32 L.R.A.,N.S., 743.
We have considered the issue as raised and argued herein and hold that the court did not err in setting aside the verdict and granting a new trial in the defendants' appeal.
Upon the issues raised by the defendants' appeal the members of this court taking part in the decision of the case are evenly divided. The case is therefore affirmed upon defendants' appeal by operation of law.
Affirmed.
HAYS, THOMPSON, and WENNERSTRUM, JJ., concur.
MULRONEY, C. J., and BLISS, J., concur in result.
SMITH, J., takes no part.