I dissent from division V of the majority opinion which follows our holding in the recent case of Rogers v. Jefferson, 224 Iowa 324,275 N.W. 874, that the failure of plaintiff to look to the left did not constitute contributory negligence as a matter of law. The case of Rogers v. Jefferson, supra, adheres to the rule announced in Roe v. Kurtz, *Page 1054 203 Iowa 906, 210 N.W. 550, that failure to look to the left on approaching an intersection does not constitute contributory negligence. In my opinion, the Roe case is contrary to the weight of authority and should be overruled.
Plaintiff was approaching the intersection from the south and saw defendant when he was about 500 feet west of the intersection. At this time plaintiff and defendant were about the same distance from the intersection and were traveling at approximately the same rate of speed. Plaintiff then looked to the east and did not look to the left again until defendant's car was from 10 to 15 feet from the point of collision which occurred in the center of the intersection.
When plaintiff looked east he saw no car approaching, and, in fact, there was no car approaching from that direction.
There was a SLOW sign about 60 feet west of the intersection. It was plaintiff's duty, in approaching and traversing the intersection, to keep a proper lookout for others who might be using the highway and to maintain such lookout as a reasonably careful and prudent person would maintain under similar circumstances. Though plaintiff had the right of way and there was a SLOW sign 60 feet west of the intersection, he was obliged to use reasonable care for his own safety and the safety of others as he approached the intersection. Reasonable care for his own safety and the safety of others required him to look at a point when looking would be effective. Manifestly, plaintiff, by failure to look to the left during his journey of 500 feet to the intersection, did not maintain the proper lookout that a reasonably prudent person would have maintained under the circumstances. He knew defendant was approaching from the west; he knew no car was approaching from the east, and, with this knowledge, he drove into the danger zone without exercising any care for his protection from the car approaching from the left. Looking to the left, and seeing defendant when he was 500 feet from the danger zone, was not a performance of his duty to keep a lookout for the purpose of avoiding a collision.
The fact that plaintiff knew defendant was approaching should have moved him to vigilance and not to abandon vigilance. Plaintiff had the right to assume that defendant would observe the SLOW sign until he knew, or should have known, to the contrary. This right did not relieve him from the duty *Page 1055 of exercising due care to avoid a collision. If plaintiff had exercised due care he would have known that defendant was not giving any indication of obeying the sign and would have been advised to the contrary. Plaintiff completely surrendered his safety to the care of defendant and exercised no care for his own safety by keeping a proper lookout at a time when such a lookout would have been effective. It is not sufficient to look; after looking, a traveler must take such action as a reasonably prudent person would take under the circumstances. Plaintiff took no action whatever.
In the case of Rogers v. Jefferson, 224 Iowa 324, 329,275 N.W. 874, 878, the court, in referring to the right of plaintiff to assume that defendant would comply with the slow sign, states:
"It must, of course, be granted that one may not go upon a busy public highway and shut his eyes to danger and bask in the dim rays of hope given forth by this more or less uncertain luminary of assumption. * * * One may not place himself in a position of obvious danger when by the exercise of ordinary care he can avoid it, even though he has the right of way, notwithstanding his right to assume that the other fellow will obey the law."
In my opinion, plaintiff did shut his eyes to danger and placed himself in a position of obvious danger in approaching this danger zone through his failure to exercise reasonable care and keep a reasonable lookout for defendant's car when it was approaching the danger zone.
In the case of Kerr v. Hayes, 250 Mich. 19, 229 N.W. 430, 431, the court, after referring to the right of way of a driver over an intersection who reaches the intersection in advance of another, states:
"These cases, however, also point out that the statutory right of way is not an assurance of safety, nor an absolute right in all conditions, but that both drivers must use due care. A driver cannot continue to assume that the one on the left will accord him right of way when the circumstances would indicate the contrary to a reasonable person.
"The rules announced in these cases presuppose that a driver has made suitable observation of approaching cars, and, *Page 1056 from the conditions as they appeared to him, has formed a reasonable belief that he could cross in safety. As plaintiff did not look to the left, he could not have formed any belief from the conditions. He is chargeable with having seen what he should have seen, that defendant's car was about twice the distance from the crossing as his own, approaching at about twice his own speed, without, at any time, giving any indication of according plaintiff the right of way, and that a collision was inevitable unless he took measures to avoid it."
In the case of Rock v. Sarazen, 209 Wis. 126, 244 N.W. 577,578, the court states:
"We are also of opinion that the plaintiff's want of care in this respect proximately contributed to produce the collision. It is manifest that, had the plaintiff made an efficient observation, he would have noticed the proximity of the truck and observed that at the rate it was approaching it would apparently collide with him if he proceeded, unless he took precautions to avoid a collision. Although he had the right of way over the truck, he would have observed that the driver of the truck was not intending to yield it, and would have refrained from attempting to cross ahead of the truck. It cannot be too forcibly brought to the attention of drivers of automobiles that vigilance at road and street intersections is absolutely essential to safety."
In the case of Jamieson v. Gerth, 61 S.D. 514, 249 N.W. 921,922, plaintiff had the right of way. The court states:
"For the plaintiff to see this car approaching, then look to the north and see no car coming, then to proceed without again glancing to the south to observe this car which he had already noticed, does not, in our opinion, conform to that degree of care which is necessary for any reasonable man to observe when he is driving a motor vehicle and entering an intersection."
In the case of Block v. Peterson, 284 Mich. 88, 278 N.W. 774,777, the court states:
"One is not free from contributory negligence who observes an automobile coming on the intersecting street and then proceeds to cross without giving further heed to the oncoming vehicle until the instant before or at the time of collision." *Page 1057
In the case of Correia v. Cambra, 51 R.I. 472, 155 A. 667, the plaintiff had the right of way. The court states, 155 A. on page 668:
"The instant case presents an even stronger case of contributory negligence in that the plaintiff actually saw the defendant's car approaching the intersection. Nevertheless, in the words of the trial justice: `He calmly goes ahead knowing this car is coming from his left without paying the slightest attention to it. He didn't look before he crossed the danger point of the intersection.'"
For other cases holding that the failure of a person having the right of way over an intersection to keep a proper and effective lookout for oncoming vehicles when approaching an intersection is guilty of negligence, see Kok v. Lattin (1933), 261 Mich. 362,246 N.W. 149; New York Tel. Co. v. Beckers (1929), 2 Cir.,30 F.2d 578; Nicholson v. Garland (1931), 156 Va. 745, 158 S.E. 901; Thomas v. Roberts (1932), La. App., 144 So. 70; Geeck v. Luckenbill, 215 Mich. 288, 183 N.W. 729; Knight v. Merignac,281 Mich. 684, 275 N.W. 732; Nelson v. Plautz, 130 Neb. 641,265 N.W. 885.
In my opinion, the plaintiff was contributorily negligent as a matter of law, which negligence contributed to his injuries and I would reverse.
BLISS and MILLER, JJ., concur in this dissent.