Jesse v. Wemer and Wemer Company

82 N.W.2d 82, 248 Iowa 1002, 1957 Iowa Sup. LEXIS 441

• Court: Supreme Court of Iowa
• Decided: April 3, 1957
• Docket: 49091
• Status: Published

Opinions

Larson, J.

Plaintiff’s action for damages resulted from an accident on Highway 63 about three miles north of Ottumwa, Iowa, May 22, 1951, about 6 or 6:30 p.m. Southbound plaintiff had brought his empty semitrailer truck to a stop from 40 to 75 feet north of a railroad underpass after he received a signal from the operator of a northbound semitrailer nearing the underpass indicating that he was coming through. Plaintiff, traveling about 50 miles per hour, had passed defendants’ vehicle, a dual-wheeled loaded stock truck, about a mile north of the underpass, and had returned to his west lane prior to the yellow nonpassing warning line on the pavement. Plaintiff testified he first pulled away from defendants’ rig, but after proceeding some 500 or 600 feet started to slow down, flash the rear running lights on his truck, and apply his brakes which activated his rear stop light. Defendant Walters said he saw the flashing lights when he was still some 150 feet behind plaintiff’s truck and applied his brakes, but for some reason was unable to stop in time to avoid running into the rear of plaintiff’s vehicle, which had then come to a complete stop.

From the record we learn that the pavement was 20 feet wide with a 6 or 8 inch berm, and although the pavement did not narrow under the pass, the pilings were very close to the edge of the pavement, and this gave the appearance of a narrow defile in the highway, as disclosed by the photo exhibits introduced.

Without reference to statutory obligations, the trial court gave instructions on due care, negligence, contributory negligence, etc. and refused defendants’ proposed instructions relating, among other things, to statutory violation and legal excuse. The jury found for the plaintiff and fixed his damages at $12,-366.29. Defendants’ motion for judgment notwithstanding the verdict and motion for a new trial were overruled and judgment entered for the jury-determined amount. Defendants assign nineteen errors, which may be considered under four propositions, i.e., Was plaintiff guilty of contributory negligence as a matter of law? Should the trial court have submitted for jury consideration certain issues as to plaintiff’s negligence and given requested instructions thereon? Did the court err in admitting certain evidence as to custom and as to competent medical testimony? Was the jury verdict excessive? Further reference to the evidence appears in the opinion and of course under the rule will be considered in the light most favorable to the plaintiff.

Defendants’ motion for a directed verdict made at the close of plaintiff’s case, renewed at the close of all testimony, based upon grounds that plaintiff had failed to prove his freedom from contributory negligence which contributed to his injury and damage was properly denied. Their principal contentions are that plaintiff violated the obligations of a statute, section 321.354, without explanation or excuse, that he failed to keep a proper lookout, and that he failed to prove he had given the statutory warning required of one who stops upon the highway, all of which contributed directly to his injury and damage.

Defendants urge, with vigor, that both the statutes pertaining to stopping and parking on the highway and pertaining to adequate warning devices were statutory pronouncements of the requirements of due care, and that the unexeused violation here of those provisions was negligence per se, citing cases such as Kisling v. Thierman, 214 Iowa 911, 243 N.W. 552; Marts v. John, 240 Iowa 180, 35 N.W.2d 844, and others. They refer to our statement in Florke v. Peterson, 245 Iowa 1031, at 1034, 65 N.W.2d 372, 373, where we said: “We have consistently held that violation, without legal excuse, of a statute which prescribes the care required under given conditions constitutes negligence per se”, citing cases.

Defendants alternately argue that if we consider the violations here no more than prima-facie negligence, the question as to whether or not plaintiff’s acts were justified and were not contributory negligence should have been submitted to the jury under proper instructions as to statutory requirements and adequate excuse for failure to comply. They cite such cases as Clark v. Umbarger (1956), 247 Iowa 938, 75 N.W.2d 243; Smith v. Pust, 232 Iowa 1194, 6 N.W.2d 315; Reed v. Willison, 245 Iowa 1066, 65 N.W.2d 440; Ellis v. Robb, 242 Iowa 875, 47 N.W.2d 246; Tuhn v. Clark, 241 Iowa 441, 41 N.W.2d 13, 15 A. L. R.2d 903; and others. With the principles and enunciations set forth in these cases there can be no question here in Iowa. They are sound and correct. However, the trial court did not feel them applicable to the facts of this case, and we agree.

I. Primarily, then, the first proposition to consider is whether or not there was substantial evidence of a violation of a statutory obligation either as to stopping on the traveled portion of the highway or in failing to give a signal warning required by the statutes. The trial court clearly concluded no such evidence appeared and gave instructions relating only to common-law requirements of due care. The problem thus requires consideration of the statutes involved.

Section 321.354, Code of Iowa 1954, in effect when this matter arose, provides in part: “* * * no person shall stop, park, or leave standing any vehicle * * * upon the paved * * * part of the highway when it is practical to stop, park, or so leave such vehicle off such part of said highway * #."

Primarily, this is a parking restriction statute. Its predecessor, section 5054, Code of 1924, used this language: “No person shall, during any period of time * * * permit a motor vehicle, under his control, to stand upon the paved portion of any hard surfaced highway outside of the corporate limits * * (Emphasis supplied.)

Clearly the word “stop” used in the statute is intended as synonymous with “park” or “leave standing.” They must be read together. “Park” means to halt and to leave standing, or to stop and remain standing. See Webster’s New International Dictionary, 1928 Edition. It is inconceivable that every stopping, regardless of the emergency or cause, even of a momentary nature, was intended to be prohibited by this statute, and in this regard it must be considered ambiguous as to legislative intent'. Such a change from the common-law rules requiring due care under compelling circumstances such as we observe here would not meet with reason or expediency. We have often said statutory construction that would lead to unreasonable, unjust, impracticable and absurd consequences cannot be adopted. Worthington v. McDonald, 246 Iowa 466, 470, 68 N.W.2d 89, and citations; 50 Am. Jur., Statutes, sections 226, 227; Annotation 37 A. L. R. 944. Although not strictly a ease in point, see discussion in Long v. Northrup, 225 Iowa 132, 279 N.W. 104, 116 A. L. R. 1475. There are far too many times when, due to road repair, narrow bridges, or other hazardous situations, due care demands that one stop his vehicle momentarily. To require the operator of such a vehicle to take to the shoulder or to explain under such circumstances why he did not go onto the shoulder of the highway to stop, under penalty of being charged with negligence, inferred or per se, would most certainly confuse rather than clarify the obligations of a motor-vehicle operator on our highways, to say nothing of juries required to pass on legal excuses therefor.. This court has said many times it is the obligation of one to stop when it becomes apparent to him another will not yield the right of way and a real or apparent hazard appears. We have said it would be negligence not to do so. See Jordan v. Schantz, 220 Iowa 1251, 1256, 264 N.W. 259.

The trial court determined, under the circumstances disclosed by the evidence, the stop made by the plaintiff did not amount to parking or standing contemplated under this statute, so as to require special instruction thereon. We concur, but in doing so also warn that there may be many instances where the question of fact as to whether a “stop” amounted to a parking prohibited by the statute should be left for the jury under proper instructions. Nevertheless we are satisfied that where one stops momentarily upon the paved portion of the highway to yield the traveled portion of the pavement at a narrow bridge, underpass or other defile, or in kindred circumstances, such a momentary stop itself is not a violation of the provisions of due care set forth in section 321.354 of the Code, and that the court was correct in refusing instructions relating thereto in this ease. Section 321.316, Code of 1954, in contemplation of required and necessary stops on the highway, sets out a requirement of notice to following vehicle operators. This stop seemed reasonably necessary. Plaintiff testified:

“The underpass * * * looked narrow to me * * *. I believed that my truck and the one approaching me from the south could not safely pass through this underpass at the same time. * * * He (the operator of the approaching truck from the south) flashed his lights. * * * I * * * flashed my lights that I was unloaded and he could have it. * * * Immediately I started flickering my trailer lights and put my foot on the brake to come to a stop. I did not put my left arm out.”

Thereafter plaintiff said he brought his truck to a casual stop “like you normally would at a stop sign.” It was a momentary stop to let the northbound vehicle come through the underpass, for as that truck came alongside, plaintiff said he was preparing to move forward, but at that moment he was hit from the rear by defendants’ loaded truck.

Under these circumstances the issue for the jury to decide was whether as a prudent man the plaintiff’s action in stopping to yield the underpass was in the exercise of due care rather than as an excuse for violating a statute, and we find no error in the court’s instructions given in this regard.

II. Defendants contend that the court’s instructions as to the legal requirement to give a timely and adequate signal of his intention to stop were erroneous, and that plaintiff failed to prove he had given the signal required by Code section 321.317. The trial court told the jury: “# * * it was his (plaintiff’s) duty before suddenly decreasing the speed of, or stopping his truck, to give a timely and adequate signal of his intention to slow down or stop. No particular type or manner of signal was required of him, but he was required to give timely warning of his intentions, and such warning as would be calculated to reasonably and timely warn other travelers upon the highway * * (Emphasis supplied.)

Defendants contend, although this may be a proper instruction under the due care required by common law, the statutory requirements are specific and set forth obligations with which plaintiff has not shown compliance. Section 321.316, Code of Iowa 1950, then in effect provided:

“No person shall stop or suddenly decrease the speed of a vehicle without first giving an appropriate signal in the manner provided herein to the driver of any vehicle immediately to the rear when there is opportunity to give such signal.”

Section 321.317 provided:

“The signals herein required may be given either by means of the hand and arm or other proper signal or signal device of a type approved by the department, * *

Section 321.318 designates the meaning of each arm signal required, when that method is used. No specific types of mechanical or electrical signals were here set forth, but defendants' contend, because of. the wording of section 321.317 it becomes incumbent upon the plaintiff to introduce proof that the type used by him was approved by the “department”, which is defined as “the motor vehicle department under the commissioner of public safety.” Section 321.1(34), Code of 1950.

Section 321.404, Code of 1950, enacted subsequent to section 321.317, gives some indication of proper equipment required bjr statute as follows:

“Every motor vehicle shall be equipped with a signal lamp or signal device which is so constructed and located on the vehicle as to give a signal of intention to stop, which shall be red or yellow in color, which signal shall be plainly visible and understandable in normal sunlight and at night from a distance of one hundred feet to the rear but shall not project a glaring or dazzling light.”

It would not be an unfair assumption, considering these statutes both effective, that any signal device which conforms to the latter standard would have the approval of the department. It would appear that the trial court’s instruction that “no particular type or manner of signal was required * * *” is too broad. However, as pointed out, the record discloses that defendant Walters saw and understood the warning signals given by plaintiff while some 150 feet away, and that plaintiff’s stop light was on after the collision. The type of warning under these facts seems quite immaterial and clearly has no bearing on a proximate cause of the collision, injury or damage. Jirkovsky v. Elfman, 323 Ill. App. 282, 55 N.E.2d 288; Ryan v. Trenkle, 203 Iowa 443, 212 N.W. 888; Scoville v. Clear Lake Bakery, 213 Iowa 534, 239 N.W. 110. Furthermore, plaintiff testified defendant operator said he pumped his brakes, but they would not hold. These being the facts, no causal connection would appear due to the failure of plaintiff to signal with-an approved mechanical or electrical device, and that error, if it was error, in the instruction would not be prejudicial. Jirkovsky v. Elfman, supra; Ryan v. Trenkle, supra.

In Scoville v. Clear Lake Bakery, supra, at page 539 of 213 Iowa, page 112 of 239 N.W., we said: “The only function to be served by lights, or by an attendant, would be to warn travelers of the presence of the obstruction in the road. Such ground of negligence could not be available to a plaintiff who saw the truck for hundreds of feet in his approach thereto, and had no need of further warning.”

Also see Schroeder v. Kindschuh, 229 Iowa 590, 595, 294 N.W. 784; Harvey v. Knowles Storage & Moving Co., 215 Iowa 35, 41, 244 N.W. 660.

III. As a further ground for their contention that the court should have directed a verdict for them, defendants claim plaintiff failed to show he maintained a proper lookout. A proper lookout is a common-law duty placed upon everyone operating a motor vehicle upon the highways of this state. This duty, under the best authorities and most sound reasoning, requires a lookout not only to the front and sides but also to the rear, with the question as to its being a proper or sufficient lookout determined by the particular surrounding circumstances as revealed by the evidence then under consideration. Clayton v. McIlrath, 241 Iowa 1162, 1170, 44 N.W.2d 741, 27 A. L. R.2d 307; Brewer v. Johnson, 247 Iowa 483, 72 N.W.2d 556. When the circumstances require, in the exercise of prudence and ordinary care, a lookout to the rear, proper lookout requires watchfulness and care for the safety of others. Ehrhardt v. Ruan Transport Corp., 245 Iowa 193, 61 N.W.2d 696; Becker v. City of Waterloo, 245 Iowa 666, 63 N.W.2d 919.

Usually prudence and ordinary care require concentration ahead rather than behind. In the face of just such a circumstance as we have here, plaintiff’s attention and obligation to see and meet the situation that was before him was of course paramount.

Considering this problem in an early case of Strever v. Woodard, 160 Iowa 332, 337, 141 N.W. 931, 933, 46 L. R. A., N. S., 644, we said: “Nor are we content with the suggestion of an obligation on the part of a traveler that he must, Janus-like, keep an outlook in the rear * *

In Delfs v. Dunshee, 143 Iowa 381, 389, 122 N.W. 236, 240, we said under the circumstances there related: “* * * Nor was he bound to keep a lookout backwards. He had the right to rely upon those approaching from the rear to do so in the exercise of ordinary care.” (Emphasis supplied.) See also Lawson v. Fordyce, 234 Iowa 632, 12 N.W.2d 301.

Also see 1 Blaslifield’s Cyclopedia of Automobile Law and Practice, Permanent Ed., section 685, where the author says: “The duty of a driver to look ahead is paramount, though he must use reasonable care to ascertain whether cars are coming from behind if intending to change his course * * *.”

At pages 743 and 744, section 322, 60 C. J. S., Motor Vehicles, the general rule is said to be “* * * where vehicles are traveling in the same direction, the precise duties of the operator of the vehicle ahead depend on the circumstances. Some decisions hold that the leading vehicle has no absolute legal position superior to that of the one following, but that the operator must exercise ordinary care under the circumstances to prevent injury to vehicles that may be following, as by the use of necessary lights or warning signals on the rear of the vehicle to give notice to overtaking traffic. [Citing LeSage v. Smith, Tex. Civ. App., 145 S.W.2d 308; Valdin v. Holteen (1953), 199 Ore. 134, 260 P.2d 504.] Other decisions, however, have broadly held that the vehicle ahead has the superior right, and that the driver thereof ordinarily owes no duty to the following car except to use the road in the usual way, in accordance with the laws of the road. It has been held that the driver in the lead need not as a rule keep a vigilant watch for drivers trailing him, although it has also been held that he cannot entirely ignore vehicles in the rear, and that he may be required to> keep a lookout for vehicles to the rear where there appears some particular fact that calls his attention to the following vehicle and imposes some duty on the motorist to maintain such a lookout, or where he intends to execute some maneuver requiring a lookout for, and signal to, the following vehicle * * (Emphasis supplied.) (Citing LeSage v. Smith, supra.)

In 5 Am. Jur., Automobiles, section 280, page 656, there appears: “The driver of the front car owes no duty to the rear or trailing car except to use the road in the usual way, in keeping with the laws of the road, and until he has been made aware of it, by signal or otherwise, he has a right to assume either that there is no other automobile in close proximity to his rear or that, being there, it is under such control as not to interfere with his free use of the road in front of and to the side of him in any lawful manner.”

In referring to the term “lookout” in the recent case of Devore v. Schaffer, 245 Iowa 1017, 1024, 65 N.W.2d 553, 557, we said: Lookout is a “duty of keeping watch for possible danger. * * * As used in connection with the operation of a motor vehicle it has no technical legal significance. Its meaning depends on the context.” As applied therein, it was held to mean care to discover whether plaintiff was in a place of safety from possible injury by the contemplated movement of the truck and trailer. We said in Ehrhardt v. Ruan Transport Corp., supra, 245 Iowa 193, 199, 61 N.W.2d 696, lookout by a motorist means more than looking straight ahead.

Of course, maintenance of a proper lookout means doing something more than mere looking, i. e., the acts required by a diligent person exercising due care when the lookout discloses or reasonably should disclose to the driver circumstances fraught with danger. It does no good to look unless the action to avoid injury is reasonably prudent. For example, such acts require the giving of a proper signal to apprize the driver of the car in the rear of one’s intentions in the operation of his vehicle. Under the circumstances related here no other act was required, and it would appear to call for mere speculation to submit to the jury the question of whether the plaintiff should have done something else to maintain a proper lookout.

In the recent ease of Clayton v. McIlrath, supra, 241 Iowa 1162, 44 N.W.2d 741, 27 A. L. R.2d 307, the plaintiffs’ automobile was overtaking and passing defendant’s ear just as defendant turned out into the left lane of traffic, resulting in a collision. We said at page 1170: “* * * a motorist who is about to turn to his left to pass a preceding vehicle is required to exercise ordinary care under the circumstances to keep a lookout for other vehicles which may be in the act of passing him or otherwise be endangered by such movement.” In such a situation lookout would include a look to the rear before a change of direction is attempted, and if danger appears, the additional duty to delay the maneuver is manifest. Such additional duty may also apply when pulling back into one’s right-hand lane immediately after passing another vehicle. Section 321.299, Code of 1954. But the evidence here was undisputed that plaintiff had already passed defendant Walters and was well in front of him in the west or proper lane of traffic even prior to his slowing down for the stop. Obviously here no duty to delay this movement was violated. We are also certain plaintiff was not negligent in assuming that those behind him would observe the laws of the road, statutory or by common-law custom, and not follow so closely that they would be unable to stop, after due, timely and adequate warning. Menke v. Peterschmidt, 246 Iowa 722, 728, 69 N.W.2d 65, and cases cited.

Assuming, then, such a stop on the highway ordinarily would require one to keep a lookout for vehicles to his rear, yet the evidence without dispute discloses plaintiff gave appropriate warning signals which were seen and understood by the operator of the following vehicle while still some 150 feet behind him. It was, as found by the jury, under proper instructions, a “proper and timely” warning on the part of the plaintiff, and that it was the defendant’s failure to stop which was the proximate cause of the collision. We find, then, no other duty upon plaintiff, the violation of which contributed to the injury.

We conclude that the duty of lookout to the rear does not require constant attention at all times, but only sufficient observation to establish an awareness of the presence of others at a time when a maneuver is contemplated which may endanger the following vehicle. This duty includes the giving of an appropriate, adequate and timely warning to the persons in the rear. As stated, the undisputed evidence discloses plaintiff was aware of defendant’s presence and gave the warning which, under the issues submitted to it by the court, the jury found was adequate and timely. Proper lookout to the rear required no more under the circumstances, and there was no error in failure to instruct thereon. True, there was a shoulder on the approach to the underpass, but at or near the place of stopping, as disclosed by the picture exhibits, it was sloping, rough and funnel-shaped up to the pass itself. Negligence could scarely be predicated upon the failure of plaintiff to take to the shoulder here, as a violation of the duty to keep a lookout to the rear. No authority has been cited to require such acts, in addition to an adequate warning, to comply with the obligation to maintain a lookout to the rear, and we think there are none. It is clear any lookout plaintiff failed to maintain, therefore, did not contribute directly to the collision, and the court’s failure to instruct on lookout to the rear, even if proper, was not prejudicial error. Brewer v. Johnson, supra, 247 Iowa 483, 72 N.W.2d 556.

IV. Defendants’ counterclaim alleges that plaintiff abruptly and negligently brought his truck to a stop without giving adequate warning or signal of his intention to do so. While the reference to an emergency was made and defendants contend the evidence of such is only proper to excuse an act of negligence on the part of plaintiff, we find in that evidence, which the court properly explained to the jury, only testimony which justified the judgment of plaintiff in not proceeding into a dangerous or apparent dangerous situation, rather than an excuse for a negligent act. It was rather justification for his acts to avoid negligence by proceeding. In this connection defendants complain of testimony admitted as to a custom of truckers to give certain signals when such a narrow impass is approached by meeting vehicles. The trial court told the jury: “* * * this line of testimony * * is being admitted and may be considered by you and given such weight as you deem it entitled to have, as bearing upon the state of mind * * * of the plaintiff, just prior to his stopping and his reason for stopping, as bearing upon the question of his contributory negligence, if any, in stopping the truck at-'the time and place in question. This evidence may be considered by you for that purpose only.”

The statement was correct. The signals given and received were properly received as the basis of plaintiff’s understanding of the danger then and there existing. This evidence did no more than justify his decision as a reasonably prudent person under the circumstances, as they were observed and reasonably understood by him. By knowledge of the custom he understood the signal meant the other truck was coming on through the pass, and he could yield or try the defile at the same time. He had a right to his one half the traveled portion of the highway under the pass, but the modern “boot hill” is filled with those who made similar tries, upon whose headstones could be written:

“Here lies the body of John O’Day

He died maintaining his right of way,

He was right, dead right, so he drove along,

But he’s just as dead as though he’d been wrong.”

The jury felt his discretion proper, and so do we. Langner v. Caviness, 238 Iowa 774, 778, 28 N.W.2d 421, 423, 172 A. L. R. 1135, and authorities cited therein. We held there that subject to certain qualifications upon the issues of negligence and contributory negligence, evidence of custom in the performance of similar acts, while not conclusive, is generally admissible. We said: “Conformity with custom is some proof .of due care and nonconformity some proof of negligence”, citing cases. Also see 38 Am. Jur., Negligence, section 267; 25 C. J. S., Customs and Usages, section 32.

V. We come now to the contention by defendants that testimony of Doctors Diamond and Fox was erroneously admitted, over proper and timely objections. The testimony of Doctor Diamond was by deposition. He testified he was the attending physician, and relied in part upon the history the plaintiff gave him. He first saw plaintiff on May 1, 1953, almost two years after the accident. He next saw the patient on May 18, 1953, and had not seen him since. Under his prescription plaintiff took about ten physiotherapy treatments, administered by the registered therapist in Doctor Diamond’s office. The doctor’s findings were that plaintiff had a chronic back sprain and he also prescribed a corset or back brace, which the plaintiff purchased and wore. Doctor Diamond said plaintiff suffered partial permanent disability of about ten per cent. It was his opinion that the injury produced a condition of the lumbar spine which was permanent in nature. His charges were $47. It appeared this action had already been commenced at the time this professional service was rendered, although both the plaintiff and the doctor denied the purpose of the consultation was to produce testimony in the case or that the doctor knew of the pending action when his services were first obtained. There was no testimony to the contrary.

Defendants contend the evidence was not clear that Doctor Diamond was “a good faith treating physician” so as to justify his testimony. They contend the question as to whether or not he was a treating physician should have been submitted to the jury. We do not agree, for such objection is addressed to the competency of the testimony as well as the doctor, and was for the court to decide. There was no error in that determination, for the mere fact that an action had been commenced would not disqualify any physician who substantial evidence discloses was retained to actually diagnose, treat and prescribe for the litigant. The hearsay and self-serving restriction, we think, should extend no further than to objectionable testimony of one retained solely for the purpose of testifying in the ease as an expert witness.

Doctor Fox admittedly was called as a medical expert and had examined plaintiff with the purpose of offering testimony in this trial. Immediately after qualification, defendants’ counsel examined him as to the source of the knowledge from which he expected to testify and objected to admission of his testimony as being based upon hearsay and self-serving information. Both parties cite and rely upon our recent pronouncements in Devore v. Schaffer, 245 Iowa 1017, 65 N.W.2d 553. We held therein a medical expert who has examined a plaintiff for the sole purpose of qualifying as an expert witness must base his testimony solely on the examination, and statements made to him by the patient as to the accident and the resulting injuries received cannot be related to the jury or form part of the basis of the expert’s opinion. Devore v. Schaffer, supra, and eases cited therein. This court there divided as to the acceptance of any expert opinion based upon the “clinical history”, even though the history was not admitted as substantive proof.

In the case at bar Doctor Fox was asked to base his opinion of the plaintiff’s physical condition solely upon his physical examination of the plaintiff, and the answer was limited by the doctor himself to plaintiff’s present condition. Defendants contend, having received a “case history” from the patient, an examining physician cannot give an opinion as to disability based solely on his own examination. We cannot say as a matter of law that is so, and believe it better to let the jury pass on the truth of that contention. The jury is best able to give his testimony the weight they feel it deserves. Doctor Fox’s opinion as to the plaintiff’s present condition was based on the patient’s reactions to manual manipulations and tests he conducted. Of course this involved statements of plaintiff as to pain, etc., for as the doctor said, pain cannot be seen. Doctor Fox stated: “Without the use of a history, without the use of an X-ray examination, I can arrive at a conclusion that the patient has a certain disability. I cannot arrive at a conclusion of permanency without the other aids. * * * As a result of the physical examination I would estimate that that man was not capable of doing heavy activity.” Doctor Fox did not give any opinion on the percentage involved.

As to the settled law on the admissibility of expert medical testimony based upon case history, we can add little to our holdings in Devore v. Schaffer, supra; Mitchell v. Montgomery Ward & Co., 226 Iowa 956, 285 N.W. 187; Pierce v. Heusinkveld, 234 Iowa 1348, 14 N.W.2d 275; Little v. Maxwell, 183 Iowa 164, 166 N.W. 760.

In 20 Am. Jur., Evidence, section 866, it is stated: “The general rule is that the opinion of a physician * * * as to the condition of an injured or diseased person, based wholly or in part on the history of the case as related to the physician * * * in the course of an examination of the former made out of court for the purpose of qualifying the physician * * * to testify as a medical expert, is not admissible, even though the injured * * * person testifies that the statements he made to the physician are true.” (Emphasis supplied.)

In 32 C. J. S., Evidence, section 536, page 259, good authority is cited that a medical expert who has examined the patient for the purpose of becoming a witness “must base his testimony solely on the examination * * * and not on statements in the nature of self-serving declarations made by the patient * * * and acts * * * which may have been either voluntary or involuntary, cannot form part of the basis of the opinion.”

It is worthy of note that no evidence to- rebut plaintiff’s claimed injury was produced by defendants. Plaintiff and Doctor Diamond had related the facts claimed in the case history. The basis of Doctor Fox’s limited opinion was, by competent evidence, already before the court, and to that extent was cumulative. We do not therefore consider it prejudicial error to admit his testimony, even though D'oetor Fox was familiar with the history and did rely somewhat on statements made by plaintiff in the process of examination. The trial court very carefully restricted the doctor’s testimony so as to avoid, we think, the objectionable evidence within the hearsay and self-serving prohibition. We conclude the opinion of Doctor Fox as to the present physical condition of the plaintiff, wherein he did not consider history or X rays in his expressed opinion on disability, resulted in no reversible error.

VI. Defendants offered twenty-two instructions and objected to the correctness or sufficiency of many of the instructions given by the court. These offered instructions dealt with the matters heretofore discussed and, without extending this opinion unduly by discussing each, it is sufficient to say we are content with the trial court’s instructions and find in them no prejudicial error. Upon issues raised by defendants’ counterclaim, the requested instructions largely refer to contentions pertaining to plaintiff’s alleged negligence.

The jury found for the plaintiff. In so doing, it found that the defendant Walters was negligent and that his negligence was the proximate cause of the collision. It found that plaintiff was free from contributory negligence. Therefore, as we have often said, if it was error for the court to have refused to submit any of the grounds referred to in instructions offered as to plaintiff’s negligence, it was harmless error because the findings of the jury are fatal to defendants’ counterclaim. Refusal to submit such issues was, therefore, not reversible error. Fagen Elevator v. Pfiester, 244 Iowa 633, 636, 637, 56 N.W.2d 577, and cases cited therein.

VII. Finally we consider defendants’ motion for a new trial based on the ground that the award was so excessive that it appeared to have been influenced by passion and prejudice. This is always a troublesome question for the appellate court. We have often said we rely greatly upon the judgment of the learned trial court, which is in a better position than we to decide such an issue. We are left to the cold record to decide whether or not the jury verdict went beyond the reasonable limits of the facts disclosed by the evidence. Each case, of course, must be determined by the pertinent facts disclosed by competent evidence. Jettre v. Healy, 245 Iowa 294, 60 N.W.2d 541, and cases cited therein; Hackman v. Beckwith, 245 Iowa 791, 64 N.W.2d 275; Stein v. Sharpe, 229 Iowa 812, 295 N.W. 155; Elings v. Ted McGrevey, Inc., 243 Iowa 815, 821, 822, 53 N.W.2d 882, and citations. For a rather complete discussion of this subject, see Henrich v. Oppedal (March, 1957), 248 Iowa 509, 81 N.W.2d 429. Plaintiff’s claim, for personal injuries in the collision which caused but $76.27 damage to his vehicle, was based on a back injury which the treating doctor said gave him a ten per cent permanent disability. Plaintiff testified he had been to various doctors and taken various treatments, but showed only $47 actual medical expense. He had lost considerable time and had taken lighter work for a while which did not bring him his usual income of about $400 per month or a sixty per cent take from loads pulled by his tractor. No amount or value was given as to the lost time, although in a different part-time occupation in 1953 he only earned $700. He testified his earnings, when he returned to truck driving, were curtailed, for he could not drive routes requiring driver handling of the heavy cargo, such as freight-peddling runs. He was forced to refuse such trips because of pains and faintness when he attempted to lift heavy objects.

We find much merit in defendants’ contention that there is a failure of clear and satisfactory proof as to the extent of the losses or damages suffered by plaintiff. Because of-a permanent injury and the nature of his work, we could expect some reduction in his earning capacity. This actual reduction was not made clear, if at all. He suffered pain and lost time, which was to some extent related. The evidence as to his total medical expense is lacking, and we are far from satisfied the record taken as a whole supports the liberal allowance made by the jury. As we said in Soreide v. Vilas & Co., 247 Iowa 1139, 1154, 78 N.W.2d 41, 50, and Booth v. General Mills, Inc., 243 Iowa 206, 210, 49 N.W.2d 561, the award in such cases is necessarily somewhat of an approximation and much must be left to the good judgment of the jury, but here we are convinced the verdict of $12,366.29 is not warranted by the evidence. Any sum in excess of $7500 must be held to be excessive.

If, therefore, within thirty days from the filing of this opinion plaintiff shall remit all of the judgment in excess of $7500 with interest and costs, the judgment will be affirmed, otherwise reversed and remanded for a new trial. — Affirmed on condition.

Wennerstrum, Hays and Peterson, JJ., concur. Smith, J., concurs in result. Thompson, J., dissents. Bliss, C. J., and G-areield and Oliver, JJ., join in the dissent.