I cannot concur in the affirming opinion in this case. The instructions of the court upon the amount of damages which might be allowed were misleading, confusing, and prejudicial, and out of harmony with the recent holdings of this court in Sergeant v. Challis, 213 Iowa 57. No citation of authority is required in support of the rule that it is the duty of the court to, in clear and definite language, instruct the jury upon every issue in the case. The court did not do so in this case on the question of the amount of the recovery.
I do not agree with the holding of the majority opinion in reference to the "assured clear distance ahead" doctrine. Section 5029 of the Code of 1931 provides:
"* * * and no person shall drive any vehicle upon a highway at a speed greater than will permit him to bring it to a stop within the assured clear distance ahead."
I think the defendant should have been permitted to testify to the facts regarding the circumstances under which he came suddenly upon the stalled car and the court should have definitely instructed the jury that they might consider such evidence in determining whether the defendant was guilty of negligence. *Page 237
The majority opinion is not in harmony with Sergeant v. Challis, 213 Iowa 57, and Kisling v. Thierman, 214 Iowa 911.
The majority opinion appears to me to be indifferent to existing conditions with which we are familiar and of which we must take cognizance. Modern transportation is necessarily geared to high speed. Motorists and all others on the highway must take this into consideration. These facts enter into the question of negligence. It is a matter of common knowledge that on many parts of the public highways, particularly on primary highways short distances from cities and towns, there are, in the evenings, what amounts to two parades, one going in each direction. For the most part, both parades are moving fast. On straight highways, it may safely be said that the average speed is perhaps 45 miles per hour, and it ranges from that to 50 miles per hour. Practically speaking, a person driving 45 miles per hour travels 67 1/2 feet per second. To do this is the common custom and practice among motorists generally. There are, of course, exceptions, and some cars are so faulty that they will not reach that speed, and some drivers, by reason of infirmities or inexperience, cannot drive that fast.
It is a matter of common knowledge that, as a practical proposition, on a highway under conditions such as hereinbefore described, drivers are more or less handicapped by the glare of approaching lights. Immediately back of the glare of every automobile there is what might be called a "dark spot," caused by the glare of the approaching car, into which the lights of the driver's car do not penetrate. If this automobile traffic is to adhere strictly to the rule of so operating a car as to be able to bring it to a stop within the assured clear distance ahead, all such traffic must necessarily be reduced to approximately ten miles per hour. To limit primary highway transportation at night to such speed is unthinkable. All such facts and circumstances surrounding the driver of a car operating under such conditions, and who is a defendant in such an action as this, should go to the jury, under proper instructions of the court. They should be permitted to determine whether the driver was guilty of negligence.
In passing, it may be said that persons on the highways owe a duty to those behind them, as well as to those in front of them. The unusually slow driver is as great a menace on the road as the fast driver. While it is true that everyone has a right to be on the road, yet that right is a relative one, and it might easily be asked *Page 238 whether, when the Chevrolet driven by the two boys in this case "died" on a crowded highway at night, they were without contributory negligence in endeavoring to propel the car by manual power on a crowded primary highway at night, knowing, as they must have known, that their presence as such a rate of speed must immediately become a menace to all ordinary automobile drivers, and that in so doing, they placed themselves in imminent peril.