Willis v. Schertz

188 Iowa 712
CourtSupreme Court of Iowa
DecidedDecember 16, 1919
StatusPublished
Cited by20 cases

This text of 188 Iowa 712 (Willis v. Schertz) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Willis v. Schertz, 188 Iowa 712 (iowa 1919).

Opinion

Lade, C. J.

1- futyTfAgu4t care?ercise I. At about two o’clock in the afternoon of May 19, 1918, Charles Kleen was driving an automobile in an easterly or northeasterly direction along the highway between the Twin Lakes; and, after passing over the bridge which spans the stream flowing from one lake to the other, observed an automobile, operated by the defendant, approaching from the north, or northeast. Hie Kleen, cousin of Charles, was sitting in the front seat with him-, and with the plaintiff on her lap, both being his .guests. No one was in the back seat. The evidence was such that the jury might have found that there was a ditch along the side of the road, toward the south lake, and that Kleen drove as near as possible to it; but that the defendant, though driving in an opposite direction, kept on the left side of the highway, and, as there was ample room in the traveled [714]*714way for passage, might, by the exercise of reasonable vigilance, have swung his car to the right side of the traveled way, and have avoided the collision. There was a sign reading, “Slow Down,” about 2'0- feet north or northeast of the bridge. ’ Kleen testified that, upon noticing this, he slowed his car down until it was barely moving, but did not honk his horn; that the traveled way was about 20 feet wide; and that he did not see the defendant’s car until it was about 30 feet from him. The defendant testified that he did not observe plaintiff’s car until about 30 feet distant; that he had -come around a-.short curve, and saw it in a bend of the road.

Enough of the facts have been recited to indicate that the defendant might have been found to have been negligent in failing to sound a warning of his approach around the curve, and in driving his car on the wroiur side of the road, as he approached Kleen’s automobile. Kleen’s negligence, if such there was, might not be imputed to the plaintiff. Nevertheless, she must have exercised ordinary care, having due regard to her situation as guest of the driver. How far such a guest, in the exercise of ordinary care, is bound to go in suggesting or interfering with the management of the automobile, is often a delicate matter to determine, and necessarily depends on the particular situation. Even though approaching a curve in the traveled way, obscuring the approach of an automobile from the opposite direction, as seems likely to have occurred in this case, much depends on the speed at which the car is moving, and the control of the driver. While the guest may properly be held to the duty of keeping a lookout, she is not bound, as a matter of law, to anticipate that an approaching car from the opposite direction will viólate the law of the road by keeping to the left side, nor, when the car is barely moving, that warning necessarily shall be sounded, even though that duty is exacted of the driver. Section 1571-ml8, Code Sup[715]*715plement, 1913. Much depends upon the speed at which the car is moving, and the nature of the highway. Where a car is moving slowly, or barely moving, as was said of Kleen’s car on the trial, a guest cannot be deemed conclusively negligent in failing to suggest another precaution: that of sounding a warming1 of its approach. We are of opinion that it was for the jury to say whether the plaintiff was guilty of any want of care in sitting in another’s lap, as she was, or in failing to suggest to Kleen that his horn be honked in nearing the curve. The evidence was such as to carry the issues to the jury.

2. Trial : unsuc-forSdirerteai0ver-waiver?011' II. Appellee contends that the sufficiency of the evidence to support the verdict .was not challenged. At the close of plaintiff’s evidence, defendant moved that a verdict be directed in his favor. This motion was ovemi^e(ij and other testimony introduced. fa failing to renew the motion at the close of all the evidence, the error in overruling the first-named motion, if any, was waived. The sufficiency of the evidence, even then, might have been challenged by the request of an instruction directing that the verdict be for the defendant, or in a motion for new trial. Warren v. Graham, 174 Iowa 162; Stoner-McCray System v. Manhattan Oil Co., 176 Iowa 630; Hansen v. Hough, 177 Iowa 93; Heiman v. Felder, 178 Iowa 740. Such instruction was requested, and the point also was raised in the motion for new trial.

3‘ mfnu dealing testimony?0™ III. Objection was made to the reading to the jury by-counsel for the plaintiff of “Extracts from the Evidence of Witnesses,” and this was overruled by the court, with the remark: “You may read the extracts from tlie record y°u have them.” The ruling finds approval in McConkie v. Babcock, 101 Iowa 126. There was no abuse of discre-read. The transpo[716]*716sition of tbe names of the parties in one of the instructions could not have prejudiced either. Reupke v. Stuhr & Son Grain Co., 126 Iowa 632.

^eading”°para-court.6 by 4116 IV. In the third paragraph of the charge, the court directed the jury that there were two grounds of negligence: (1) That defendant was driving his car on the wrong side of the road; and (2) that he was not “giving the care an<l attention to the operation of his automobile that an ordinary, careful, and prudent man would give under like circumstances.” Exception was said, the second ground was not included in the petition. Therein it is alleged that:

“The defendant carelessly, negligently, and without regard to the safety of those passing upon the highway, drove the car which he was in, in such a careless and negligent manner, and on the wrong side of the public highway, that the car that he' was driving was run into the car the plaintiff was in, * * * throwing her out, knocking out her teeth, breaking her ribs, and causing her other and permanent injuries.”

Plainly enough, this states two charges of negligence: i. e., that the defendant drove his automobile (1) in a careless and negligent manner, and (2) in a. prohibited place, namely, on the wrong side of the highway; and, if he did either, resulting in plaintiff’s injury, he was negligent. The petition might have been made more specific, but it was not assailed; and, if the defendant operated his car in a negligent manner, to plaintiff’s injury, he was quite as liable as though this had resulted from keeping on the left side of the traveled way. There was no error in the instruction.

V. Exception was taken to this language, found in the seventh instruction:

[717]*717„ 5. Negligence : negíigence^y unusiiai aefim. [716]*716“Contributory negligence is such negligence on the part [717]*717of one injured as helps to produce the inju-r r ries complained Of.”

The precise objection to this language is not disclosed, and we are unable to appreciate the defect therein. Though not in the language ordinarily employed, it is such as might not have been misunderstood, especially in view of other instructions cautioning the jury that, in order to recover, plaintiff must have been without contributory negligence. There was no error.

VI. Ten exceptions were taken to the 23d instruction, which, in so far as criticised, reads:

“If you find, from a preponderance of the evidence, that the plaintiff is entitled to recover, then you will determine the amount of damages, if any, that she has sustained.

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Bluebook (online)
188 Iowa 712, Counsel Stack Legal Research, https://law.counselstack.com/opinion/willis-v-schertz-iowa-1919.