I am disposed to agree with the majority opinion herein except for division VI thereof. I cannot agree with division VI and respectfully dissent therefrom.
Division VI of the majority opinion states that instruction 14 should not have been given, but holds that it was not reversible error. I agree that it should not have been given. It is clearly erroneous. I would go further and hold that the error compels a reversal herein.
The majority opinion states that instruction 14 is quite favorable to defendant and, in the main, is not unfavorable to *Page 1158 him; that, in view of instructions 9 and 11, the jury should have understood that the driver of the vehicle first in the intersection was entitled to the right of way even though approaching from the left, and indicates that instruction 14 is a mere abstract statement of law which the court does not apply specifically to this case. I disagree with all of these propositions.
While instruction 14 does not specifically name the defendant, it does specifically refer to the driver of a vehicle approaching from the right and the driver of a vehicle approaching from the left. In this case, plaintiff's driver approached from the right; defendant approached from the left. To give the instruction any application whatever to the case, the jury would have to insert the plaintiff's driver wherever the driver from the right is mentioned and defendant wherever the driver approaching from the left is mentioned. The instruction is inescapably made specifically applicable to the specific parties to this lawsuit.
As stated by the majority opinion, the right-of-way statute applicable herein (section 5026.01, Code, 1939) made the right of way dependent upon two possibilities: (1) if either vehicle entered the intersection first, it had the right of way; (2) if the vehicles approached the intersection at the same time, the driver on the right had the right of way. Under this statute, if the plaintiff's driver entered the intersection first or entered it at the same time that defendant did, he had the right of way. However, if defendant entered the intersection first, he had the right of way. The vice in instruction 14 is that it takes away any possibility for defendant's having the right of way under the evidence herein.
The first sentence of instruction 14 advised the jury that one approaching from the left might cross the intersection if he "finds no one approaching from the right upon the other highway within such distance and approaching at such a rate of speed as to reasonably indicate danger of a collision." Such language is open to but one interpretation, namely, that, even though defendant entered the intersection first, still he could not proceed across it if there was a vehicle approaching from his right, not yet in the intersection, at such a speed that there was danger of a collision. This was not the law applicable *Page 1159 herein. If defendant entered the intersection first, he had the right of way and it was the duty of the driver of the vehicle on the right to yield that right of way. The court's statement of the law was clearly erroneous and I see nothing favorable for the defendant therein. It was highly prejudicial to him.
The second sentence of instruction 14 states that "the only preference is where travelers or vehicles on intersecting highways approach the intersection so nearly at the same time, at such rates of speed that if both proceed without regard to the other a collision or interference between them is reasonably to be apprehended." Under such circumstances, the instruction gave the right of preference to the plaintiff. This is not a fair statement of the law. It is not favorable to the defendant. It is highly prejudicial to him.
The third sentence of instruction 14 told the jury that, if the driver of a vehicle approaching an intersection "finds another approaching from his right in an intersecting highway at so nearly the same time and at such a rate of speed that if both proceed without regard for the other a collision is reasonably to be apprehended, then it is the duty of such party approaching from the left to yield the right of way to the other." This was not the law if defendant entered the intersection first. This instruction was not favorable to the defendant. It was highly prejudicial to him.
The last sentence of instruction 14 states, "The driver of plaintiff's car had a right to assume that the defendant would comply with the law of the road until he knew, or until, in the exercise of ordinary care, he should have known otherwise." This sentence is made specifically applicable to plaintiff's driver and advised the jury that he had a right to rely upon defendant's complying with rules of law which the statutes of this state did not require him to obey. Such statement is not favorable to the defendant. It is highly prejudicial to him.
While there was evidence from which the jury might have found that plaintiff's driver entered the intersection first or that the two vehicles approached the intersection at the same time so that plaintiff's driver was entitled to the right of way, yet, on the other hand, there was substantial evidence which *Page 1160 might, have been very persuasive to the jury that defendant's vehicle was definitely into the intersection first. Defendant relied upon such evidence in making a defense herein. He was entitled to have a fair statement of the law applicable to such evidence. Under instructions 9 and 11, the law was correctly stated, but such benefits as defendant may have derived from those instructions were entirely destroyed by the erroneous and highly prejudicial statements contained in instruction 14 above pointed out.
The fact that instructions 9 and 11 correctly state the law does not in any way obviate the prejudice to defendant from the erroneous statements appearing in instruction 14. This is obvious from repeated pronouncements of this court. In State v. Keasling,74 Iowa 528, 532, 533, 38 N.W. 397, 399, we state:
"It can make no difference as to the effect of the instruction that the true rule is subsequently laid down, for with two conflicting and inconsistent rules given them for their guidance, it can never be determined which the jury obeyed, or under which the verdict was found."
In Cox v. Cline, 139 Iowa 128, 131, 117 N.W. 48, 49, we state:
"This placed upon the plaintiff a burden materially greater than the law warrants. It is probably true that the correct rule can be deduced from other instructions given, but this we think cannot serve to remove or neutralize the prejudice presumably resulting from the unqualified statement in the seventh paragraph."
And in Kerr v. Topping, 109 Iowa 150, 156, 80 N.W. 321, 323, we state:
"When conflicting instructions are given, one of which announces a correct, and the other an incorrect, rule, the case must be reversed, for there is no means of knowing which one the jury followed."
Many other decisions might be cited to the same effect. It seems to me obvious that the error in instruction 14 should require a reversal herein.
I agree that instruction 14 is a correct statement of the *Page 1161 law applicable under section 5035, Code, 1935, and that it is a correct statement of the law as it now exists under chapter 175, Acts of the Forty-ninth General Assembly. But this case is governed by section 5026.01, Code, 1939. Under that statute, instruction 14 was unquestionably erroneous.
I would reverse.
HALE, WENNERSTRUM, and SMITH, JJ., join in this dissent.