I am unable to agree with the opinion of the majority herein and respectfully dissent.
The majority opinion undertakes to distinguish all of the cases relied upon by appellant and holds that none of such decisions require a reversal herein. I cannot so interpret the prior decisions of this court, particularly Hewitt v. Ogle, 219 Iowa 46,256 N.W. 755; Kemmish v. McCoid, 193 Iowa 958, 185 N.W. 628; and Parrack v. McGaffey, 217 Iowa 368, 251 N.W. 871.
The defendant herein was undertaking to make a left-hand turn in front of the plaintiff's automobile. To accomplish such *Page 476 maneuver, he was required by statute as well as by the rules of common law to see that there was sufficient space to make such movement in safety before undertaking to turn to the left. The burden was upon him to prove that he performed this duty. I am unable to find any evidence in the record which would warrant the jury finding as it did that he performed this duty. I think that his failure to perform that duty constituted negligence as a matter of law and that the motion for directed verdict in favor of the plaintiff on the defendant's counterclaim should have been sustained.
The statutory provision is section 5026.02 which reads as follows:
"The driver of a vehicle within an intersection intending to turn to the left shall yield the right-of-way to any vehicle approaching from the opposite direction which is within the intersection or so close thereto as to constitute an immediate hazard, but said driver, having so yielded and having given a signal when and as required by this chapter, may make such left turn and the drivers of all other vehicles approaching the intersection from said opposite direction shall yield the right-of-way to the vehicle making the left turn."
In the case of Parrack v. McGaffey, supra, we hold (217 Iowa at 371, 251 N.W. at 872) that the duty described in the above statute is imposed upon one who undertakes to make a left-hand turn in front of an approaching automobile, even without statute, stating as follows:
"The duty imposed upon the driver of an automobile under the foregoing statute and instruction requires the driver to see that there was sufficient space in which to make the turn in safety. This duty not only requires a driver to see that there is sufficient space to make the turn in safety, but also requires the driver to slacken the speed of his car to allow the approaching car to pass, if there is not sufficient space within which to make the turn. The exercise of ordinary care on her part, even without a statute, would require a person under similar circumstances to control his car in such a manner as to avoid an accident." *Page 477
The foregoing language was cited with approval in the case of Wimer v. M. M. Star Bottling Co., 221 Iowa 120, 125,264 N.W. 262, 265, where we held that one who undertakes to make a left-hand turn in front of an approaching truck was guilty of contributory negligence as a matter of law which barred recovery and that one of the elements of such contributory negligence lay in the fact "that before making the turn to the left and changing his course, he did not first see that there was sufficient space to make such movement in safety."
The case of Kemmish v. McCoid, supra, does not involve a collision between two cars where one of them was undertaking to make a left-hand turn in front of the other. However, the case does hold that the plaintiff was guilty of contributory negligence as a matter of law in failing to maintain a proper lookout, that such contributory negligence is shown by the physical facts, and I am unable to distinguish the rule there applied from the situation that here confronts us. At pages 964 and 965 of 193 Iowa, pages 630 and 631 of 185 N.W., we state:
"Mrs. Kemmish does not claim, however, that she saw the approach of defendant from the north, nor that she believed that she had time to safely enter the highway and proceed southward thereon in the usual way of travel on the highway before defendant would reach the intersection, but claims that she looked, and saw nothing. She is either mistaken in her belief that she looked immediately before going upon the highway, or else she failed to see the car, which must have been very close and in plain sight. In either case, she was negligent. * * * The fact that the front end of defendant's automobile struck plaintiff's very nearly at the center, when the relative speed of the two cars is considered, shows that defendant's car must have been within 60 or 70 feet of the intersection at the time Mrs. Kemmish drove into the highway. The physical facts refute her claim that she looked to the north and that the defendant's automobile was not in sight."
The foregoing language is quoted with approval by us in the case of Hewitt v. Ogle, supra. In that case we also held that the physical facts demonstrated a failure to maintain a *Page 478 proper lookout by the plaintiff to observe the defendant's car and because of such negligence, a motion to direct a verdict was properly sustained. At pages 49 and 50 of 219 Iowa, pages 756 and 757 of 256 N.W., we state:
"Assuming that the defendants' car was traveling at the maximum speed as testified by plaintiff's witness, it would have traveled five times as fast as the plaintiff's car was traveling while crossing the intersection. The defendants' car could not have traveled more than 175 feet while plaintiff's car was traveling the 35 feet which he testified it had proceeded from the sidewalk on the west side of the intersection to the point where it was struck. There is other evidence which is not contradicted and which tends very strongly to show that the distance from the point where plaintiff claims that he and his decedent looked southward to the point where the road begins to make a dip is more than 300 feet, and there is no evidence that the so-called dip is sufficiently deep at any point so that a car at any point on the road for a distance of 600 feet south of the intersection could not be seen from the point where plaintiff testified that he and his wife looked. Leaving this testimony out of consideration, however, and taking the plaintiff's own testimony in which he states that he and decedent looked down the road southward and could see the surface of the road for 225 to 250 feet, it is quite apparent that the defendants' car must have been upon the road and in plain view of the plaintiff and his decedent at the time they reached the sidewalk on the west side of the intersection where he testified that they both looked to the southward.
"Under the undisputed evidence and the physical facts it appears that the defendants' car must have been in plain view on G street and not more than 175 feet south of the intersection at the time that plaintiff and decedent looked to the south. We are not here dealing with a case where either plaintiff or his decedent saw the defendants' car approaching and thought that they would have time to proceed through the intersection before it came in collision with them. The direct and positive testimony of the plaintiff is that both he and decedent looked and that neither of them saw the defendants' car. As has been said in *Page 479 cases involving similar situations, either the plaintiff and his decedent did not look, or, if they did look and did not see what was plainly in their view, they did not use ordinary care in looking. In either event, they were both guilty of contributory negligence, and contributory negligence on the part of decedent is, of course, an absolute barrier to recovery in this action. The physical fact rule applicable to situations such as that presented by the evidence in this case is so well established that it requires no extended citation of authorities."
Applying the foregoing pronouncements to the situation that here confronts us, it is apparent that when the appellee approached the intersection of 12th street and undertook to turn to the left thereon, it was his duty both by reason of statute and by reason of the common law to first see that there was sufficient space to make the turn in safety and to exercise ordinary care in such a manner as to avoid an accident. The burden was upon the appellee to establish the fact that he performed such duty. As stated by the majority opinion, when appellee was about to make the turn to the left, he looked to the east, could see some 200 feet, saw no car approaching, started his turn, traveled six or eight feet and was struck when the front end of his car was about two feet across the center of the highway. This is the evidence upon which he relies to establish that he maintained a proper lookout. I cannot agree that it is sufficient to sustain the burden cast upon him.
As stated by the majority opinion, the evidence shows that appellant's car was traveling about 30 to 35 miles per hour and that at the time of the collision, appellee had slowed down to about 10 miles per hour. Giving the appellee the benefit of the doubt and all reasonable inferences, appellant's car was not traveling more than four times as fast as appellee's car. Applying the physical fact rule which we applied in the case of Hewitt v. Ogle, supra, if appellee looked to the east and only traveled 8 feet thereafter, as he says, appellant's car was only about 30 feet away and under any consideration of the evidence must have been in plain view. Either appellee did not look as he says he did or he did not see what was in plain view. In either case he was negligent. *Page 480
The majority opinion lays great stress upon the fact that appellee is not bound by his estimate that he could see 200 feet when he looked. I do not think this feature of the case is in any way decisive. If he looked when he said he looked, he did not have to see any 200 feet to see appellant's automobile. It was his duty to look. It was his duty to prove that he looked and to prove when he looked. His testimony as to when he looked precludes him from recovering herein if we are to follow our former decisions which I am unable to distinguish. Accordingly, I would reverse.