(dissenting from Division I and result).
I am unable to agree with Division I of the majority opinion and the result reached, and respectfully dissent.
I. Section 321.432, Code, 1966, provides :
“Horns and warning devices. Every motor vehicle when operated upon a highway shall be equipped with a horn in good working order and capable of emitting sound audible under normal conditions from a distance of not less than two hundred feet, but no horn or other warning device shall emit an unreasonably loud' or harsh sound or a whistle. The driver of a motor vehicle shall when *570reasonably necessary to insure safe operation give audible warning with his horn but shall not otherwise use such horn when upon ¿ highway.”
While Trask’s failure to sound his horn was not pleaded as an element of contributory negligence in the answers filed by Gibbs, nor was the failure to sound a horn specified by Gibbs in the counterclaim as one of the specifications of negligence, witnesses were permitted to testify without objection that no horn signal was given by Trask prior to the collision.
I find myself in agreement with defendants’ position that the court erred in overruling their motion made at the close of the evidence for permission to amend their pleadings to conform to the proof by alleging Trask’s failure to sound his horn as a ground of negligence and as a ground of contributory negligence because a fact issue was created in the evidence. Rule 88, Rules of Civil Procedure, provides:
“ * * * The court, in furtherance of justice, may allow later amendments, including those to conform, to the proof and which do not substantially change the claim or defense. * * * ” (Emphasis supplied.)
The trial court has broad discretion to permit or deny amendments to conform to the proof at the close of all evidence and, unless this discretion is abused, we will not interfere. To allow such amendments is the rule, not the exception. W. & W. Livestock Enterprises, Inc. v. Dennler (Iowa 1970), 179 N.W.2d 484 and citations.
I do not believe the amendment sought by defendants was an issue-changing amendment. See Brown v. Guiter, 256 Iowa 671, 675-676, 128 N.W.2d 896, 899.
In Mooney v. Nagel, 251 Iowa 1052, 103 N.W.2d 76, this court said:
“We .are not unmindful of the discretion necessarily lodged in the trial court, but where the parties have voluntarily offered evidence on an issue the denial of an amendment to conform to such proof appears to be beyond fair discretion. The allowance of an amendment is the general rule and to deny it is the exception. Rule 88, Rules of Civil Procedure, contemplates a reasonable allowance of amendments where, as here, the claim is not substantially changed.” (251 Iowa at 1059, 103 N.W.2d at 80.)
And see Laverty v. Hawkeye Security Insurance Co., 258 Iowa 717, 725, 140 N.W.2d 83, 88.
The statute requiring the driver of a motor vehicle to give an audible warning with his horn when reasonably necessary to insure safe operation was commented upon in Lawson v. Fordyce, 234 Iowa 632, 12 N.W.2d 301, where the court said :
“What does the phrase ‘to insure safe operation’ mean? It must mean operation of a motor vehicle in such manner as, in all reasonable probability, it will not injure the motorist and those riding with him, or any other persons or property rightfully on and using the highway. What do the words ‘reasonably necessary’ as used in the section mean? Do they not mean and call for the same conduct as the standard, reasonably prudent person would use under the same circumstances? If such a person would sound a horn, to not do so would ordinarily be negligence.”
(234 Iowa at 637, 12 N.W.2d at 304.)
See also Christensen v. Kelley, 257 Iowa 1320, 1324-1325, 135 N.W.2d 510, 516; Paulsen v. Haker, 250 Iowa 532, 537, 95 N.W.2d 47, 52.
And in Nichols v. Snyder, 247 Iowa 1302, 78 N.W.2d 836, this court said:
“If the circumstances disclosed may be found to require that a warning be given as ‘reasonably necessary’ to insure the safe operation of the vehicle, then the duty to do so cannot be avoided by the operator’s denial of knowledge of the obvious actual situation. The duty is not solely dependent upon the driver’s knowledge of existing danger, but is also *571based upon the knowledge and observation he should have had as a reasonably prudent individual under the existing circumstances. The warning statutes mean nothing less. Thus if the statute may require a warning, such a determination is for the jury under proper instructions.”
(Emphasis supplied.)
(247 Iowa at 1310, 78 N.W.2d at 841.)
I incline to the view expressed in Cottong v. Zybell, 179 Iowa 1184, 1187, 162 N.W. 767, 768, where this court said:
“As contended, the allowance of amendments to pleadings is largely a matter of discretion. But, when such discretion is abused, it is well settled that this court will intervene, and we do not hesitate so to do where, as here, the change wrought thereby is merely the pleading of established and uncontrovert-ed facts, proven by one party without objection and in accordance with testimony of the other.”
Trial court, in my judgment, erred in overruling defendants’ motion at the close of the- evidence for permission to amend their pleadings to conform to the proof. I would reverse.