I am unable to agree with the majority in their opinion in the above-entitled case, and therefore respectfully dissent.
As I read this record, there is evidence that the driver of the truck looked into the rear-vision mirror when 30 feet from the point of the accident; that he saw a car coming about 300 to 350 feet back of him, which car was on the east side of the road; that he then extended his left hand, indicating his intention to make a left turn, and traveled a distance of possibly 15 feet while his hand was thus extended; that he traveled about 15 feet further, making a complete left-hand turn, and was headed due west, the rear wheels being about 4 feet west of the west center black line on the pavement about the time that defendants' car struck the truck on the left rear wheel. There is evidence that there were skidmarks on the pavement, made by the defendants' car, for about 100 feet, indicating that the defendants' car was a considerable distance in the rear of the truck when the driver of defendants' car became aware that the truck was making a left turn. There was a shoulder to the east of the pavement for 10 feet, which, with at least 9 feet of pavement, should have been sufficient space for the driver of the car to turn to the right in an endeavor to avoid the collision. There is of course evidence to the contrary. In other words, there is a conflict in the evidence.
In view of such a record it seems to me that the question was for the jury to determine. As I understand the rules laid down by this court, violation of section 5033 of the Code is negligence *Page 842 per se when and only when such violation was the proximate cause of the injury, and whether it was the proximate cause of the injury is, except in those cases where the facts are clear and undisputed, a question for the jury.
In the recent case of Enfield v. Butler, 221 Iowa 615, 624, 264 N.W. 546, 551, we said:
"The general rule as laid down by our decisions is that, `except in cases where the facts are clear and undisputed, and the cause and effect so apparent to every candid mind that but one conclusion may fairly be drawn, the question of contributory negligence is for the jury.'"
In the case at bar, was the negligence of the plaintiff's driver in not coming to and beyond the center of the intersection the proximate cause of the accident? Upon that question there is a conflict in the evidence, and, where there is a conflict, the jury should be the one to decide.
I would affirm the case.
HAMILTON and RICHARDS, JJ., join in this dissent.