¶1(dissenting).
¶2I dissent.
¶3Plaintiff, Carl Raymond Anderson, had worked at the Western Tool Company for more than two years. He was well aware of the large parking facilities furnished the employees. Motorcycles were parked near the plant building at the east end of the parking lot. Defendant, a foreman, was assigned a regular parking space approximately 75 feet west of plaintiff’s space. Plaintiff knew defendant’s vehicle and that it was regularly parked in a long line with other employees’ vehicles and that backing out was necessary to get in position to leave the lot at the end of the working day.
¶4Like other day shift employees plaintiff “nunched out” at 3:30 p. m., May 30, 1969 and went to his motorcycle. Some other employees were then leaving the parking lot. Plaintiff mounted his Honda, a small motorcycle, and proceeded west in a path about two feet back of the line of parked vehicles. He testified he increased his speed from five to eight miles per hour and “I couldn’t have been going much over eight miles an hour because it wouldn’t run that fast in low.”
¶5Plaintiff further testified he was about five feet from defendant’s vehicle when he first saw it three-fourths out in his lane. He stated: “When I was about five feet away, I hollered ‘Whoa’. I think I hollered pretty loud.” Plaintiff stated he at no time sounded the horn of his motorcycle.
¶6Plaintiff’s testimony includes: “I do know that a motorcycle and a motorcyclist is more difficult to see, and I am supposed to operate my cycle on the assumption that I am more difficult to see. I am supposed to take that into account.”
¶7Defendant testified he heard no warning but did not deny or attempt to show plaintiff had not hollered, “Whoa”. Apparently it was defendant’s theory a reasonable prudent person under the circumstances would have sounded a horn while proceeding westerly two feet behind the line of parked vehicles. At the close of the testimony defendant was permitted to add this specification of negligence to his answer: “In failing to give a warning signal of his approach by means of his horn when he knew or should have known that such warning was necessary under the circumstances to insure the safe operation of his motorcycle.”
¶8The trial court’s instruction 12, which plaintiff asserts was erroneous, stated:
¶9*547“Defendant alleges that at the time and place involved herein, plaintiff Carl Raymond Anderson was negligent in failing to sound his horn to warn defendant of said plaintiff’s approach.
¶10“It was the duty of said plaintiff at said time and place to take such precautions in the operation of his motorcycle as an ordinarily reasonable and prudent person would have taken under the same or similar circumstances.
¶11“If you find from a preponderance of the evidence that at said time and place plaintiff Carl Raymond Anderson observed the backward movement of defendant’s motor vehicle in time to have sounded the horn on said plaintiff’s motorcycle to warn defendant of said plaintiff’s approach, and you further find that an ordinarily reasonable and prudent person under the same or similar circumstances would have sounded the horn on said motorcycle, and you further find that at said time and place plaintiff Carl Raymond Anderson failed to use ordinary care to sound the horn on his motorcycle, such failure, if any, would constitute negligence on the part of said plaintiff.”
¶12I. A pleader is entitled to claim as many grounds of actionable negligence as flow from his pleaded statement of facts. Rosin v. Northwestern States P. Cem. Co., 252 Iowa 564, 568, 107 N.W.2d 559, 561; Sutton v. Moreland, 214 Iowa 337, 342, 242 N.W. 75, 78. And the party is entitled to have the court instruct the jury accordingly, subject only to the condition legally sufficient evidence was in fact presented. Anthes v. Anthes, 258 Iowa 260, 265, 139 N.W.2d 201, 205.
¶13II. As pointed out by the majority opinion the accident involved occurred on private property and therefore we are not considering statutory laws of the road. We are considering the common law duty to use reasonable care.
¶14Instruction 12 did not advise the jury plaintiff was negligent if he failed to sound his motorcycle horn. It advised the jury they could find plaintiff guilty of negligence in this regard only if an ordinarily reasonable and prudent person under the same or similar circumstances would have sounded the horn. Under the instruction the jury was free to find that since plaintiff had shouted “Whoa”, ordinary care did not require the additional blowing of the horn. I find no error in giving instruction 12. In my opinion the trial court gave plaintiff more than he was entitled to in requiring the jury to first find he observed the backward movement of defendant’s vehicle in time to sound a horn.
¶15III.I agree with the majority that plaintiff failed to conform with rule 196, Rules of Civil Procedure, and that his second assigned error is not properly before this court. I would not reach or discuss the problem of whether plaintiff was faced with a sudden emergency not of his own making.
¶16I would affirm.
¶17LeGRAND, J., joins in this dissent.