He was unable to do so in time to avoid the accident. It is argued any emergency was the making of the party claiming it. Patrolman Driscoll, who stopped Wright to advise him the lights were growing dim, testified the lights were visible to feet. See also Coppola v. McDonald, Iowa , , N. We believe these matters were for the jury to determine as a matter of fact, not for the court to determine as a matter of law. Defendant's assignments all relate to instructions given or refused. In Goman, after plaintiff truck driver had sounded his horn, defendant suddenly drove her Plymouth car from the shoulder onto the pavement in the path of the truck when it was so close a collision could not be avoided.
Goman also is readily factually distinguishable from the case at bar. Benedik, Iowa , N. Thompson, Iowa , N. Wederath, Carroll, and Clyde Putnam, Jr. Then Simcox reached for cigarettes on the seat beside him. I respectfully dissent from division I of the majority opinion but agree with division II and a reversal. Patrolman Driscoll, who stopped Wright to advise him the lights were growing dim, testified the lights were visible to feet. Defendant urged the plaintiff was negligent for failure to have adequate lighting on his vehicle. He first traveled to feet along the shoulder when another eastbound truck passed him. The record is clear and undisputed that defendant's driver diverted his attention from the highway for such a period of time that plaintiff's large, loaded tractor-trailer moved from its position on the shoulder of the road onto the south lane of the divided highway and was moving in an easterly direction when defendant's driver discovered he was faced with an emergency. According to plaintiff, his vehicle did not suddenly and unexpectedly enter the path of defendant's travel. The doctrine was applicable under plaintiff's version. There was no evidence of violation of section Bertrand, Iowa , N. Bertrand, supra, Iowa at , N. This took only about a second, but when he again looked ahead he saw Wright had driven from the shoulder onto the traveled portion of the highway. We have frequently said a defendant may offer evidence of a legal excuse for his violation of the rules of the road as charged by plaintiff. This, of course, was the crucial issue in the case. He did not receive a ticket but did intend to follow the officer's advice to have his lights checked at the exit, a quarter mile away. Defendant's final assignment of error is the submission of this issue to the jury. Hendricks, Iowa , , N. Irwin, Iowa , N. Plaintiff claimed defendant driver was negligent in failing to drive his truck at a speed which would allow him to stop within the assured-clear-distance ahead as required in section In our polestar case of Kisling v. We do not believe it was. Our question, then, is whether this issue was sufficiently presented to the jury under the instruction given by the court.
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