NEGLIGENCE-CONTRIBUTORY NEGLIGENCE-CUSTOMARY VIOLATION OF STATUTE BY DEFENDANT AS BEARING ON ISSUE OF PLAINTIFF\u27S CONTRIBUTORY NEGLIGENCE

Plaintiff\u27s empty truck, proceeding uphill, collided on plaintiff\u27s side of the road with defendant\u27s loaded truck which was traveling in the opposite direction. Both trucks were engaged in the same road-surfacing project. The road had a washout on defendant\u27s side. Defendant\u27s answer alleged that there was an established custom under which drivers of empty trucks yielded the right of way to drivers of loaded trucks when about to meet in a narrow or defective place in the highway; that defendant relied upon such custom which plaintiff failed to observe; and that the plaintiff\u27s failure to observe the custom constituted contributory negligence. The trial court granted the plaintiff\u27s motion to strike these allegations on the ground that they constituted no defense for defendant\u27s failure to obey a statute. On appeal, held, reversed. While the custom pleaded cannot be invoked to prove that defendant exercised due care, it can be considered in determining whether plaintiff was free from contributory negligence. Langner v. Caviness, (Iowa 1947) 28 N.W. (2d) 421