Hart v. Stence

I am unable to go with the majority of the court in the determination of this case. The conclusion of the majority is in line with the former holdings of this court, and still the case, upon the record, is a very considerable extension of such holdings.

The court has now reached the place in which it holds that there can be no recovery by one driving a motor vehicle upon the highway after nightfall who collides with an unlighted vehicle ahead. It is now the law in Iowa that the driver of every car after nightfall is under the imperative duty to discover every vehicle ahead of him no matter how flagrantly negligent the operator of the vehicle ahead may be.

This result has come through the interpretation by this court of the act of the legislature providing that the driver of every motor vehicle shall operate the same at a speed that is neither greater nor less than is reasonable under all the facts and circumstances and at such speed that it can be stopped within the assured clear distance ahead.

I have stated that this case marks a very decided extension of our holdings. This is true, owing to the fact that there is no evidence in the record that the car could not be stopped within the assured clear distance ahead, except the fact that the plaintiff collided with the defendant's unlighted truck. The accident occurred on a straight, level stretch of road. But an instant before the collision took place, plaintiff encountered a car traveling in the opposite direction. The lights on this car were dimmed. There is no suggestion that they were blinding. In the absence of evidence tending to establish in any degree that defendant drove his car at a rate of speed that would prevent him from stopping within the assured clear distance ahead, or that he drove headlong into a stretch of road which he did not have a reasonable opportunity to observe, the court has denied plaintiff recovery. This must be on the theory that plaintiff was under an imperative duty to discover the truck parked partly on the paving and partly on the shoulder of the road, which the operator had left unlighted without any excuse or justification, and in violation of a specific statute.

Prior to the enactment of the statute referred to, this court recognized the law to be that the operator of a motor vehicle was under the duty to exercise reasonable care for his own safety and the safety of others, but it had recognized that reasonable care did not require the operator to invariably discover substantial obstacles to safe passage along the highway. Kendall v. City of Des Moines, 183 Iowa 866, 167 N.W. 684; Livingstone v. Dole,184 Iowa 1340, 167 N.W. 639. But in virtue of this statute, which relates in its entirety to speed, this court has imposed a greater duty than ordinary care upon the motorist in relation to the discovery of obstacles ahead and imposed the imperative duty to discover all obstacles ahead.

I do not believe that such consequence was contemplated by the legislature and I am unable to find language in the statute to warrant it.

The statute was enacted simultaneously with the repeal of the law setting a fixed maximum speed at which motor vehicles might be driven upon the highways of the state. The purpose of the statute is not difficult of ascertainment. With the repeal of the maximum speed limit law, there would be no maximum limit to speed. If in the operation of cars around curves, past obstructions to view, and over hilltops the driver encountered an obstacle in the highway too late to avoid colliding with it, he would urge in justification that while proceeding at a lawful rate of speed the obstacle could only be discovered too late to avoid colliding with it. Undoubtedly to avoid this situation, as well as for a purpose hereinafter referred to, the assured clear distance ahead clause was added to the law.

The purpose of the change in the law was undoubtedly to facilitate more speedy travel on the highways.

Bearing in mind the purpose of the change in the law and giving effect to every word used by the legislature, it is evident that the words "clear distance ahead" do not mean a section of the highway which is entirely free from impediment, but that they mean a section of the highway in which there is an open course ahead in which the car may be driven. The word "assured" is defined as meaning "certain". In this view of the matter the requirement of the statute that the car shall be so driven that it can be stopped within the "assured clear distance ahead" means that the car shall be so driven that it can be stopped within the distance that a course is certainly open to it on the highway ahead. It is, of course, true that if a driver overtakes a car, the overtaken car is "ahead" but such car is not ahead in the course which the driver will pursue in passing it. If the words "clear distance ahead" mean an entirely unimpeded portion of the highway, the right of the driver to pass an overtaken car — specifically recognized by statute (Code, sections 5021, 5022) — is for all practical purposes taken away, for the driver must in the first instance reduce his speed so that he can stop his car before reaching the overtaken car and must then proceed at such rate of speed that he can ever stop his car before reaching the overtaken car. It may be that a car can be passed in this manner. It may be that the legislature intended to bring about this result, but even a confiding being might well entertain doubts on both propositions.

The word "assured" also means "made sure". It is this meaning which the court has assigned to the word in the construction of the statute. The court has construed the entire phrase to mean a section of the highway that the driver has made sure is entirely unimpeded.

I think it can be demonstrated beyond all doubt that there is no justification for assigning to the word "assured" the meaning "made sure". Bearing in mind that the language under consideration is not the only language of the statute bearing upon the question of speed and that the same section requires that the speed of the car shall ever be reasonable under all the circumstances, it is obvious to me that the language under consideration is intended to limit speed to a rate at which the driver can effectively exercise reasonable care and control the rate of speed so that it is reasonable.

This thought is entirely consistent with all the acts of the legislature regulating the operation of motor cars on the highway. It has been provided that the car shall be equipped with effective brakes, an efficient signaling device, and lights of designated power of illumination, and that it shall be driven so that it can be stopped within the "assured clear distance ahead". The observance of these provisions of law is necessary if the driver of the car is to be in a position to actually use ordinary care in meeting traffic conditions created by the use of the highways by others. It has not been enacted that the driver shall discover all obstacles ahead or that he shall stop before colliding with objects ahead of him. The conclusion is inescapable to me that the legislature intended the driver of the car to be in a position to use reasonable care and that it left the ultimate duty resting upon the driver to use this degree of care for his own safety and the safety of others.

In this situation the word "assured" is as effective when defined as "certain" as it is when defined as "made sure", for so far as speed is concerned — and that is what the statute pertains to — one driving so that he can stop within the distance in which a course is "certainly" open ahead can control his speed as effectively as if he were driving it so that he could stop it within the distance that he has "made sure" a course is open ahead. There can be no complaint concerning a speed that will permit the car to be stopped within the distance in which a course is certainly open ahead.

I cannot escape the conclusion that the language under consideration does not prescribe the ultimate or final duty as to speed. I think the ultimate duty as to speed is that it shall be reasonable under all the facts and circumstances.

As a car travels along the highway, the driver is ever being carried into new surroundings. Except when driven at a speed, entirely impractical under ordinary circumstances, an automobile cannot be brought to an immediate stop. Reason suggests that there should be some relationship between the speed with which the driver projects himself into new surroundings and his ability to stop. The statute fixes this relationship. Its requirement is that he shall enter the new surroundings only at a rate of speed which will enable him to stop in the distance between him and the unfolding surroundings in which a course is certainly open to his car. The observance of this much of the law assures the driver constant ability to drive at a rate of speed that is reasonable under all the attending circumstances.

The duty to drive the car so that it can be stopped within the assured clear distance ahead is constant, yet it is remote to any particular accident or incident, for it is a duty to be performed before the scene of the incident is reached. The entire statute imposes two duties, namely the remote duty just referred to and a duty immediate to the incident — to drive at a speed that is reasonable under all the circumstances. The remote duty insures ability to exercise reasonable care. The immediate duty requires that the car be driven at the scene of the accident at a rate of speed that is reasonable under all the circumstances.

The duty to drive so that the car can be stopped within the assured clear distance ahead may not be far distant in time from any particular incident and still it is truly remote. The end of the "assured clear distance ahead" is not constant. It changes as the car progresses. There must have been time when the place of the accident was the end of the assured clear distance ahead. If at such instant the car was being so driven that it could be stopped before the place of the accident was reached, the duty imposed by this particular language was fully performed, and in that instant such duty was supplanted by the duty to drive the car at a rate that was reasonable under the circumstances. It is perfectly obvious that even though the car were being then driven so that it could not be stopped within the then assured clear distance ahead, if before the scene of the accident was reached the speed had been reduced to one that was reasonable under all the circumstances, the driver would not be answerable for damages.

In that speed at any moment is, to a large extent, the product of what has been done in preceding moments, it is difficult to clearly differentiate the speed with which the scene of the accident is approached from speed at the scene of the accident. It is certain, however, that unless the speed at the time of the accident was unreasonable, a violation of the provision under discussion is of no moment, and, if the speed at the time of the accident was excessive, the violation of duty has proceeded one step further, namely, to a speed that was unreasonable at the place of the accident. A violation of the duty imposed by this language can never be distinguished as a cause of an accident for it is a remote duty. It is a duty which has been superseded before the scene of the accident has been reached. The duty which superseded it is the ultimate duty, and the violation of this duty embraces within itself a violation of every duty as to speed which rested on the driver at the time of the accident. This ultimate duty is to drive at a rate of speed that is reasonable under all the circumstances.

When it is said that it is the duty of the driver to drive at a careful and prudent speed not greater than nor less than is reasonable and proper having due regard to the traffic, surface, and width of the highway and other conditions then existing, the duty as to speed imposed by the statute under consideration on drivers of other than freight carrying vehicles, as to any particular incident or occurrence, has been fully stated.

In consequence of these views I am unable to find in the statute any warrant for imposing upon the plaintiff a greater duty to discover the truck ahead than the use of reasonable care.

I have no quarrel with the majority in so far as it is held that one may not drive into the darkness at a rate of speed so great that he cannot stop within the effective range of vision. Independent of the statute under consideration, or any other statute, all men must agree that such a rate of speed is not consonant with reasonable care. But a person using the highway is not an insurer of his own safety, in the sense that if the vehicle which he is operating collides with some obstacle in the highway, he can, under no circumstances, recover. He is required to use ordinary care for his own safety, and if, in spite of such care, he is injured through the negligence of another, he may recover damages for his injuries. Beyond peradventure, the legislature did not intend to change this by requiring that motor vehicles be equipped with headlights of stated power of illumination. The law does not make it the imperative duty of the driver of a car to discover all objects which such lights may reveal. It is the driver's duty to operate the car, so equipped, with reasonable care, and to make reasonable use of all his senses to discover danger. But "reasonable use of the senses means such use as an ordinarily prudent and careful person would have used under the circumstances". Livingstone v. Dole, 184 Iowa 1340, 167 N.W. 639.

In Kendall v. City of Des Moines, 183 Iowa 866, 167 N.W. 684, action was brought to recover damages resulting from a car being driven through a barricade into an excavation. The accident occurred after dark, on a public street. That the defendant city was negligent was not in dispute, but it was strenuously contended that the driver of the car was guilty of contributory negligence. The evidence indicated that the barriers were discernible at such a distance that the accident could have been avoided. In that case it is said:

"It is, however, the duty of the driver of an automobile to exercise ordinary and reasonable care for his own safety and of the property intrusted to his care. Ordinary care, as applied to the driver of an automobile, is such as prudent men in such occupation ordinarily use, taking into consideration the time, place, condition of the highway, weather, the character of the instrumentality employed, the presence of other travelers or vehicles upon the streets, the extent to which the same is lighted, and many other facts and circumstances often present and necessary to be considered. * * *

"It is the general rule that the driver of an automobile is required to use reasonable and ordinary care for his own safety, and cannot be held to the absolute duty of observing all defects and obstructions in the highway, but must make such observations as the circumstances reasonably require."

The court held that the plaintiff was not chargeable with contributory negligence as a matter of law.

Any other position would mean that the driver of a car colliding with an obstacle or obstruction on the highway, during the hours of darkness, could, under no circumstances, recover for consequent injuries. Every man would drive his car upon the highway at night at his own peril, regardless of the negligence of those who precede him on the road. Upon the general principles involved see Huggard v. Refining Co., 132 Iowa 724, 109 N.W. 475; 45 C.J. page 947, section 507.

Our more recent cases have held to the other view largely, if not of necessity, as a result of the views on the "assured clear distance ahead" statute, but the cases of Kimmel v. Mitchell,216 Iowa 366, 249 N.W. 151, Kadlec v. Johnson Const. Co., 217 Iowa 299, 252 N.W. 103, and Carlson v. Jacob E. Decker Sons,218 Iowa 54, 253 N.W. 923, are clearly inconsistent with the conclusion of the majority.

This view does not impose an intolerable burden upon those who may encounter trouble upon the highway after nightfall. The statutes (Code 1931, sections 5044-5055-b2) fully regulate the matter of lighting vehicles upon the highway, and define the duties and rights of the operators of motor vehicles in case of failure of lights. Such statutes furnish abundant protection to one who may encounter trouble with lights after dark, for he is not guilty of negligence who conducts himself in accordance with the law. The inevitable result of the holding of the majority is, however, to excuse the most flagrant and wanton failure to comply with the provisions of the statute through the process of imposing the absolute duty on the drivers of following vehicles to discover the car ahead upon the highway.

I reiterate that the verdict was directed against plaintiff only because he collided with the truck parked partly on the paving and partly on the shoulder of the road. The truck body was made of native lumber, was unpainted and of the color of the pavement. It had no reflectors on it. It was left unlighted without any excuse or circumstance of justification. Plaintiff was within 10 or 15 feet from the truck when he first observed it. He applied his brakes and diverted his car in an effort to pass by the truck, but the corner of the truck struck his car near the cowl light, and started the car swaying with the ultimate result that the car overturned. There is no evidence in the record as to the distance within which the car could be stopped when driven as it was being driven. For the purpose of the present case, the speed of the car must be taken as 40 miles per hour. The road was straight and level. With the exception of the car which plaintiff passed an instant before the collision, there was no traffic on the highway. The lights of both passing cars were dimmed and there is no suggestion that the lights of the encountered car were blinding. The lights of plaintiff's car complied with statutory requirements. I desire to call attention to one other fact disclosed by the record. Plaintiff testified: "Just as I passed this car there was a dark spot there for a second and then I banged into this truck". It is a matter known to all persons driving cars after dark, and one susceptible of ascertainment by the simple process of riding upon the highway after dark, that the lights of an approaching car, when dimmed and not blinding, illuminate the highway sufficiently to reveal substantial objects on the highway over a considerable distance, before the car actually passes. Just as the car passes, there is a sensation for an instant of there being a dark space ahead. This is, of course, an illusion caused by the cutting off of the light of the passing car. What appears to be the dark spot was but an instant before surveyed in the light of both cars. It appears dark because the light of one car has been withdrawn, but the dark spot is not a portion of the road which the driver has had no opportunity to observe. And beyond the dark spot lies a distance which the lights of the approaching car have illuminated before the sensation of the dark spot is experienced. One who passes a car and experiences the sensation of the dark spot is not plunging into a space which he has had no opportunity to observe, for ahead of him at that instant is a stretch of road which he has had an opportunity to see under the illumination of the approaching car as well as under his own lights. This stretch will vary in length but it is invariably present in a substantial length. I am not discussing the situation created by blinding lights, or one that may exist on curves or at hilltops or where there is more than one approaching car. The lights on the cars in this case were dimmed and the road was straight and level and there was but one approaching car. The defendant's truck was parked partially on the shoulder and partially on the paving. It was in the most dangerous position, for being to the outer side of the paving it was largely out of the field of illumination of the approaching car. It was parked in violation of statute and was left unlighted without excuse in violation of statute. It had no reflectors or clearance lights on it, which is also a violation of the statute. Code, sections 5054, 5044-d1. Considering the color of the truck and the other circumstances, it is difficult to conceive a more dangerous and unlawful trap upon the highway.

If the statute means that the driver must drive so that he can stop in the distance ahead that he has made sure is free from impediment, the opinion of the majority is right. I conceive, however, that the statute means that the car shall be so driven that it can be stopped within the distance that an open course lies ahead for it, and at a speed that is reasonable. I conceive that the burden resting on the driver is to use reasonable care for his own safety and that in measuring this care he may assume that those who are ahead will observe the law. I cannot conceive an Iowa General Assembly enacting a law relieving the drivers of all cars upon the highways from enforceable duties to the drivers of following cars.

Such being my conceptions of the law, I must respectfully dissent.

MITCHELL, C.J., concurs in dissenting opinion of CLAUSSEN, J.