University of Vermont AAHS

Wegner v. Parcel

Iowa Court of Appeals

2004 WL 894511

April 28, 2004

 

Summary of Opinion

 

Plaintiff Wegner was riding horseback on a public road.  While she was crossing a bridge at night she was struck from behind by defendant’s motor vehicle.  The trial court told the jury that each party was required to exercise reasonable care to avoid colliding with the other.  The jury found that plaintiff was 51 percent responsible for the collision; that resulted in a verdict in favor of the defendant.  In this opinion, the Court of Appeals said that the trial court properly instructed the jury and was not required to instruct the jury that plaintiff was not required to keep a lookout behind her, not required to choose an alternative route and was not required to wear reflective clothing.  Those instructions were covered adequately by the instructions that were given.

 

Text of Opinion

 

 Christine and Duane Wegner appeal from the district court's order dismissing their negligence claim against James Parcel, following a jury verdict finding Christine Wegner fifty-one percent at fault in a traffic collision. The Wegners contend the district court erred in instructing the jury on Christine's duty to keep a proper lookout, her duty to take an alternate safe route, and her duty to make herself more visible. They also contend the court erred in refusing to instruct the jury there is no legal duty for a person on horseback to ride on a trail, wear reflective clothing, or take actions to be more visible. Finally, they contend the court erred in refusing to instruct the jury on the rights and duties of a person riding a horse on the roadway. We affirm.

 

 I. Background Facts and Proceedings. On November 7, 2001, at approximately 5:00 p.m., Duane and Christine Wegner were riding on horseback along a trail that runs parallel to Underwood Avenue. Upon reaching the Underwood Avenue bridge, the Wegners stopped and waited for several vehicle to pass. They observed a vehicle approaching a stop sign at an intersection four-tenths of a mile south of the bridge. Without waiting to see which direction the vehicle turned, the Wegners began to cross the bridge.

 

 The speed limit along Underwood Avenue is fifty-five miles per hour. There are no street lamps near the bridge. The bridge is 280 feet long, with safety rails extending an additional seventy-five feet on each end. The total distance to cross the bridge is 430 feet. The bridge sees an average of fifteen hundred vehicles per day.

 

 The sun had set at 4:55 p.m. that day. The Wegners were wearing dark clothing without any reflection. Their horses were dark in color. The Wegners crossed the bridge riding single file with Duane in the lead. Whenever Christine rode along the highway, she kept pressure on the right-hand rein so the horse would not veer into traffic.

 

 James Parcel turned north on to Underwood Avenue and began heading over the bridge with his low beams activated. The first thing Parcel saw was Christine's horse in the road on an angle. Parcel swerved to the left and applied his brakes in an effort to avoid the horse. However, he struck the rear right quarter of the horse with the right front and side of his pickup. Christine was knocked off her horse, causing her severe injuries.

 

 On February 11, 2002, the Wegners filed a petition alleging Parcel was negligent in operating his vehicle. The case was tried to a jury in April 2003. The jury found Parcel was negligent, and that his negligence was a proximate cause of damage to Christine Wegner. However, the jury found Christine was fifty-one percent at fault and Parcel was forty-nine percent at fault. As a result, the court entered an order of dismissal on May 20, 2003.

 

 II. Scope of Review. We review the district court's instructions to the jury for errors at law. Kurth v. Iowa Dept. of Transp., 628 N.W.2d 1, 5 (Iowa 2001). Parties are entitled to have their legal theories submitted to the jury so long as the instructions embodying those theories correctly state the law, have application to the case and are not otherwise covered in the court's instructions. Vasconez v. Mills, 651 N.W.2d 48, 52 (Iowa 2002). In determining whether substantial evidence supports the submission of an instruction, we construe the evidence in the light most favorable to the party seeking submission. Sleeth v. Louvar, 659 N.W.2d 210, 215 (Iowa 2003). Evidence is substantial if a reasonable person would accept it as adequate to reach a conclusion. Vasconez, 651 N.W.2d at 52.

 

 III. Analysis. The Wegners allege the district court erred with respect to four instructions. They contend the district court improperly instructed the jury on Christine's duty to maintain a proper lookout, her duty to take an alternate safe route, and her duty to make herself more visible. They further contend the district court erred in refusing to submit two of their requested instructions to the jury: (1) an instruction regarding the absence of a legal duty for a person on horseback to ride on a trail, wear reflective clothing, or take action to become more visible, and (2) an instruction regarding the rights and duties of a person riding a horse on the roadway being the same as the rights and duties applicable to the driver of a vehicle.

 

 A. Duty to maintain a proper lookout. In Instruction No. 21, the court enumerated Parcel's affirmative defenses, which include his claim Christine Wegner was negligent in failing to keep a proper lookout. The court defined the term "proper lookout" in Instruction No. 18:

 

"Proper lookout" is the lookout a reasonable person would keep in the same or similar situation. It means more than looking and seeing. It includes being aware of the operation of the driver's vehicle in relation to what the driver saw or should have seen. A horse rider need not keep a lookout to the rear all the time, but must be aware of the presence of others when the rider's actions may be dangerous. A violation of this duty is negligence.

 

 The Wegners concede this instruction is a correct statement of law. However, the Wegners argue there was not substantial evidence Christine breached her duty to maintain a proper lookout.

 

 The Wegners' objection to the instruction rests primarily with their contention Christine did not violate any duty to keep a proper lookout to the rear.

 

 The duty of lookout to the rear does not require constant attention at all times, but only sufficient observation to establish an awareness of the presence of others at time when a maneuver is contemplated which may endanger a following vehicle.

 

McCoy v. Miller, 257 Iowa 1151, 1157, 136 N.w.2d 332, 336 (1965). The Wegners argue that because Christine was not contemplating a maneuver that would endanger a following vehicle, such as turning or swerving, she was not required to keep lookout to the rear. See Vasconez, 651 N.W.2d at 52 (holding evidence insufficient to submit instruction on proper lookout where bicyclist was not turning, swerving, or executing any other maneuver prior to the collision). We conclude their interpretation of the law and the facts are erroneous.

 

 The facts are sufficient for a reasonable jury to find Christine Wegner failed to maintain a proper lookout at the time she executed her turn on to the Underwood Avenue bridge. The Wegners observed Parcel's vehicle coming to a stop at an intersection four-tenths of a mile south of the bridge. However, instead of waiting to see if Parcel was turning north to proceed in their direction, the Wegners endeavored to cross the bridge. Duane Wegner testified that if he had known Parcel's vehicle was turning north, he would have waited to cross the bridge. Such actions could be considered by a reasonable factfinder as failure to maintain a proper lookout.

 

 The Wegners' actions, when considered with the surrounding circumstances, could also be found to violate the duty to maintain a proper lookout.

 

A proper lookout is common law duty placed upon everyone operating a motor vehicle upon the highways of this state. This duty, under the best authorities and most sound reasoning, requires a lookout not only to the front and sides but also to the rear, with the question as to its being a proper or sufficient lookout determined by the particular surrounding circumstances as revealed by the evidence then under consideration.

 

Jesse v. Wemer & Wemer Co., 248 Iowa 1002, 1011, 82 N.W.2d 82, 86 (1957). The jury was instructed that a rider must be aware of the presence of other when the rider's actions may be dangerous. When considered in context, the Wegners' actions could be found to be dangerous by a reasonable factfinder: It was after sunset and dark outside; there were no lights on the bridge; the Wegners were wearing dark clothing and riding dark horses without any reflection; the bridge is well traveled at a speed of fifty-five miles per hour; the Wegners had a distance of 430 feet to cross; the Wegners saw Parcel's vehicle at a nearby intersection, but did not wait to see whether he turned towards them; and Christine testified she would have waited to cross the bridge if she knew Parcel going north, but she never turned around to check his direction.

 

 B. Duty to take an alternate safe route. Instruction No. 21 also lists as one of Parcel's affirmative defenses Christine Wegner's failure to take an alternate safe route. In Instruction No. 22, the court outlined the alternate safe route defense:

 

Parcel must prove each of the following propositions:

1. Christine Wegner knew of the dangerous condition.

2. Christine Wegner knew an alternate safe route was available.

3. Christine Wegner failed to take an alternate safe route.

The phrase "knew or should have known" means the person had actual knowledge or that a reasonably observant person under the same or similar circumstances would have had knowledge.

 

 The Wegners allege the instruction materially misstates the law regarding horse riders and the duty to take an alternate safe route.

 

 In deciding to instruct the jury on the alternate safe route affirmative defense, the district court cited the case of Mays v. Siekman, 247 N.W.2d 613 (Neb.1976), which is factually similar to the case at bar. In Mays, the Nebraska Supreme Court held that the plaintiff was bound by the common law rules of negligence and was required to exercise reasonable care to avoid injury from motor vehicles using the highway. Mays, 247 N.W.2d at 614. The court held:

 

That plaintiff was negligent is apparent. She rode on to the viaduct approach on a road with a 50 mile per hour speed limit knowing that it was at least partially dark; that cars might approach from either direction; that the guardrails would prevent her riding off the road; and that both her clothes and the horse were dark colored, and without a reflector or lights. Also, she could have ridden around and under the viaduct as she had done earlier in the evening. She was an experienced horsewoman and knew that horses sometimes become frightened and shy. She could not have been surprised that the horse shied when facing the lights of an oncoming vehicle.

 

Id. at 614-15 (emphasis added).

 

 The Wegners argue the court erred in relying on Mays because the Nebraska legislature had not made its state's rules of the road applicable to horse riders at the time the plaintiff was injured. In contrast, Iowa has made the rules of the road applicable to horse riders. See Iowa Code § 321.234(1) (2001). The Wegners argue Christine has the legal right to ride her horse on the roadway and had no duty to take an alternate safe route.

 

 There is no question Christine Wegner had the legal right to ride her horse on Underwood Avenue. However, that does not end the inquiry of whether she was contributorily negligent in doing so. Statutes do not set up the sole standard of care required by persons using a roadway. Stimmel v. Johnson, 199 N.W.2d 356, 360 (Iowa 1972). They establish only the minimum. Id. The rule that motorists must use such care as an ordinarily reasonable and prudent person would use under the same or similar circumstances is still applicable. Id. Even when evidence shows a person complied with the statutory provisions, there may still be a question of common law negligence for failing under the circumstances to do more. Id. at 361.

 

 Our courts have recognized the principle that a party has a duty to take a safe route where both safe and dangerous paths are equally open. Kessler v. Wal-Mart Stores, Inc., 587 N.W.2d 804, 807 (Iowa Ct.App.1998). In McDowell v. Interstate Oil Co., 212 Iowa 1314, 1319, 237 N.W. 456, 459 (1931), our supreme court held extreme conditions may develop on a roadway which would make it improper for operators who know of the condition to drive vehicles over such dangerous portions. In determining when such situations exist, it is necessary to consider the facts and circumstances of a particular case. McDowell, 212 Iowa at 1319, 237 N.W. at 459. Whether a reasonable and prudent person would have considered the crossing of the Underwood Avenue bridge to be dangerous under the facts of this case is a question for the jury. See Crookham v. Riley, 584 N.W .2d 258, 265 (Iowa 1998) (holding questions of contributory negligence are generally for the jury). The facts here were sufficient to instruct the jury on the alternate safe route theory.

 

 C. Duty to make oneself more visible. Instruction No. 21 instructed the jury as to Parcel's affirmative defense of Christine Wegner's failure to take steps to make herself more visible to vehicles using the highway. The Wegners contend the district court erred because Christine had no duty under Iowa law to make herself more visible by wearing reflective clothing or putting a reflective device on her horse.

 

 Instruction No. 14 states:

"Negligence" means failure to use ordinary care. Ordinary care is the care which a reasonably careful person would use under similar circumstances. "Negligence" is doing something a reasonably careful person would not do under similar circumstances, or failing to do something a reasonably careful person would do under similar circumstances.

 

 Parcel claims that when read in conjunction with Instruction No. 14, the court's instruction regarding Christine Wegner's failure to make herself more visible does not instruct the jury Christine was required by law to wear reflective clothing or attach reflective devices to her horse. Rather, Parcel argues the jury was simply instructed to consider Christine's failure to use such clothing or devices in determining whether she exercised ordinary care under the circumstances.

 

 As we have already stated, our statutes provide only the minimum standard of care required. Stimmel, 199 N.W.2d at 360. Christine Wegner also had a common law duty to use such care as an ordinarily reasonable and prudent person would use under the same or similar circumstances. See id. Her failure to take steps to make herself more visible to motor vehicles using the highway, if not something a reasonable and prudent person would do under the same circumstances, would render her in breach of her common law duty and therefore contributorily negligent. We find no error in the court's instruction.

 

 D. Absence of legal duty. The Wegners next contends the district court erred in denying their requested instruction to the jury regarding the absence of a duty under Iowa law for a horse rider to ride on a trail, to wear reflective clothing, or to put reflective devices on the horse. The proposed instruction read:

 

Plaintiff Christy Wegner as a horse rider on a roadway had a duty to exercise reasonable care for her own safety. Iowa law does not require a horse rider to ride on a trail or to necessarily wear any reflective clothing or put any reflective devices on the horse. In determining whether the Plaintiff was guilty of negligence, you should consider as may appear from the evidence these as well as any and all facts and circumstances which tend to show that she did or did not use care commensurate with the dangers to be reasonably apprehended and did or did not use that degree of care which a reasonably careful and prudent person would have used in the same or similar situation.

 

The district court rejected this proposed instruction, stating:

 

I believe that there is a duty, that it's found not in statutory law but in common law referring to the Mays case again, that there is a question whether that duty has been breached.... I think to say that Iowa law does not have a statute requiring wearing reflective clothing is not relevant or material. It may not be a good idea to do something. It may be risky to do something and that something may not be against the law. It may not make it a criminal act or violation of the rules of the road. It still may be negligence.

 

 When we weigh the sufficiency of the evidence to support a requested instruction, we review the evidence in the light most favorable to the party seeking the instruction. Weyerhaeuser Co. v. Thermogas Co., 620 N.W.2d 819, 824 (Iowa 2000). A district court's failure to give a requested instruction does not require a reversal unless the failure results in prejudice to the party requesting the instruction. Id. The district court must give a requested jury instruction if the instruction (1) correctly states the law, (2) has application to the case, and (3) is not stated elsewhere in the instructions. Id. at 823.

 

 We conclude the district court did not err in refusing to give the Wegners' proposed jury instruction. Where the concept behind a requested jury instruction is embodied in other instructions, the district court may properly reject the proposed instruction. Here, the district court instructed the jury in Instruction No. 15:

 

The Plaintiffs and Defendant both had a right to use the road, but each had to respect the rights of the other. Each could assume the other would obey the law until they knew, or in the exercise of ordinary care, should have known the other was not going to obey the law.

 

 Instruction No. 15 outlined the plaintiffs' right to be on the road. Instruction No. 14 informed the jury a person is required to exercise reasonable care under the circumstances, or one is negligent. The jury was not instructed plaintiffs were required to use a trail or wear reflectors. Because the law was embodied in other instructions, the district court did not err in rejecting the Wegners' proposed instruction.

 

 E. Rights and duties of a person riding a horse on the roadway. Finally, the Wegners contend the court erred in rejecting their proposed jury instruction regarding the rights of a horse rider being the same as the rights of an automobile driver. The proposed instruction states, "A person riding an animal upon a roadway has the same rights and duties applicable to a driver of a vehicle." As Instruction No. 15 adequately stated the law in respect to this matter, we find no error in the district court's refusal to give the proposed instruction.

 

 AFFIRMED.


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