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Meyer v. City of Des Moines9/18/1991
or vehicle in a position contrary to the provisions of the statute or ordinance; (3) where the driver of the motor vehicle is confronted by an emergency not of the driver's own making, and by reason of such an emergency, the driver fails to obey the statute; and (4) where a statute specifically provides an excuse or exception. Bangs, 174 N.W.2d at 374; 1 Iowa Civil Jury Instructions 600.74 (1989).
Here the defendants requested a separate instruction on legal excuse as to Prugh's alleged violation of Iowa Code section 321.297(1)(b), which we earlier set out in full. The defendants narrowed their request to excuse 1 (impossibility to comply with the statute) and excuse 4 (statutory excuse or exception).
The district court refused the request, explaining that Instruction No. 16-- which it gave--adequately covered the defendants' theory of legal excuse. Instruction No. 16 was based on Iowa Code section 321.297, which we earlier set out in full. The instruction provided:
A vehicle shall be driven on the right half of the road on all roads of sufficient width, except as follows:
1. When an obstruction makes it necessary to drive to the left of the center of the road. Any person doing so shall yield the right-of-way to all vehicles traveling in the opposite direction upon the open portion of the road within a distance which is an imminent danger.
A parked car may constitute an "obstruction" under this instruction.
A violation of this law is negligence.
The defendants concede Instruction No. 16 adequately covered one of their two theories of legal excuse: the statutory exception excuse. However, the defendants complain because they think the instruction did not cover their "impossibility" theory. We think the defendants were not entitled to an instruction on their "impossibility" theory of legal excuse.
This court has said that "impossible" as used in the legal excuse doctrine "should not be given a narrow, literal construction." Sylvia v. Pennock, 253 Iowa 779, 784, 113 N.W.2d 749, 752-53 (1962). "Impossible" was construed to mean, for these purposes, "not reasonably practicable." Id. at 784, 113 N.W.2d at 753.
The defendants contend that the jury could find that David was looking down and veering to the left in the direction of the garbage truck. Given the size of the truck and David's actions just before the collision, the defendants argue that the jury could have found that Prugh's compliance with section 321.297(1) was not reasonably practicable.
Because the moped veered to the left does not in our view provide a legal excuse based on impossibility. Although this evidence may tend to excuse a collision with the moped, that is not what the defendants must show. They must show facts tending to excuse the lane violation. We fail to see how any maneuvering of the moped in its own lane could have made it impossible for the truck to stay in its own lane.
C. Failure to mitigate damages: nonuse of helmet
Another error the defendants assign that may arise on retrial concerns Instruction No. 9 given in the damage phase. The instruction provides:
A party is required to exercise reasonable care for their own safety. This means that if, in the exercise of ordinary care under the circumstances, a party could have taken some particular action to avoid an injury , then they are under a duty to take such action.
In this case defendants claim that plaintiff David Lee Meyer unreasonably failed to take action to avoid an injury because he failed to wear a helmet while operating his moped.
You are instructed that there is no common la
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