Baker v. Zimmerman

Decision Date14 February 1917
Docket NumberNo. 29843.,29843.
Citation179 Iowa 272,161 N.W. 479
PartiesBAKER v. ZIMMERMAN.
CourtIowa Supreme Court

OPINION TEXT STARTS HERE

Appeal from District Court, Johnson County; R. P. Howell, Judge.

Automobiles driven by the parties hereto collided August 30, 1911. Both claim damages, plaintiff in the petition and defendant in his counterclaim. Trial resulted in a verdict for the defendant and judgment thereon. The plaintiff appeals. Affirmed.Ranck & Messer, of Iowa City, for appellant.

Dutcher & Davis, of Iowa City, for appellee.

LADD, J.

A road known as De Voe street extends through Lone Tree in a southerly direction, and is intersected by a highway running east and west. This latter is 48 feet wide between fences. De Voe street is 66 feet wide, and the traveled way is in the center. There is a bankment about 4 feet high out 2 1/2 feet from the east line. The ground rises 6 to 14 inches for a width of 4 feet along the west line of the street. A culvert is on the east side of this street at the intersection with the highway, as long as the traveled way is in width, the north end being about 16 feet from the lot line. A stone 6 or 8 inches in diameter lies at the north end. A section corner stone lies at the center of the intersecting roads, about 30 feet from the stone at the end of the culvert, and between these stones is the traveled way. The highway from the east slopes downward toward the intersection, and in turning north De Voe street rises somewhat. Farther along there was some descent toward the south. In the morning of August 30, 1911, the plaintiff drove from Lone Tree south along the west side of the traveled way until about 350 feet from the intersection when, according to his testimony, he saw defendant driving his automobile from the east several rods around the corner to the north on the west side of the traveled way, over into it or near the center, then swerved to the west directly toward plaintiff, who disconnected the power put the emergency brake on and tried to avoid defendant's car. He testified:

“When Zimmerman first came around the corner he started north on the west side of the street; then he turned east as if he were going into the middle of the road, and I thought he was going onto the east side of the road where he belonged. He had his right front wheel in the center of the road, and then he turned and came back to the west side of the road toward my car. If I had not turned my car a little, we would have had a head-on collision. He ran his car straight toward me on the wrong side of the road. I couldn't have passed him on the west side. * * * If Zimmerman had gone the way he started he could have run along the fence and went through, but he turned right into us again. When I saw he was coming into my car I tried to miss him. I got part of the car out of the way, but didn't get the hind end of the car. He hit the back wheels with his springs. If I hadn't turned my car he would have hit it right on the front end, a head-on collision. I turned my car to the east. If Zimmerman had went straight north, he could have passed between my car and the fence.”

This was corroborated, in substance, by a person riding with him. Other evidence tended to show that both cars after the collision were on the west side of the road, that of defendant heading northeasterly with rear wheels against the west bank, and that of plaintiff standing with the front, turned slightly east of south, and about 180 feet from the intersection. On the other hand, defendant testified that:

“When I came up to that corner and looked down the road I saw an automobile coming down the hill. When I came around that corner I intended to give this man the full road, and therefore I took a due course instead of taking a short turn. I took a due course and got out of the road as quick as I could over on the west side of the road, and I continued up the road 150 feet further, and this man was coming right down the center of the road. All of a sudden he turned very short to the west; then I saw he was going to run square head into me. I put on my brake and come to a standstill, when he turned his car very near to the east. The back of his car didn't go as fast as the front of his car, that is to the north and south; his car came down right that way, my front spring of my car when his car struck went right in by his door there and had a tendency to pull my car sideways. I went out over the wheel. * * * I was going 8 or 9 miles an hour up the street north for about 100 feet. I was driving my car north on the west side of the road at the time of the accident, and Mr. Baker was driving his car south on the same side of the road. * * * At the time of the accident my car was clear over on the west side of the road. * * * Q. Can't you turn an automobile, couldn't you turn that corner very easily 8 or 10 miles an hour without going out 6 feet from the stone you spoke of? A. It is like this, Brother Ranck, it is up hill where you make the turn, two-cylinder car, weighs 2,800 pounds, only 22 horse power, if I make a short turn I would have been in the center of the road, so I got out of the road as quick as I could when I seen that bunch of dust coming down the road. Baker was just starting down the top of the hill when I turned the corner. I run across the street and up the west side of the road at the rate of 8, 9, or 10 miles an hour. If you took it square it would be 175 feet my car traveled about 160 feet from the time I first saw Baker until the cars collided. I could see his car distinctly all the way from the moment I first saw him.”

Whether the speed of plaintiff's car exceeded 25 miles an hour was in dispute. Defendant testified further that there were about 13 feet of grass west of the traveled way and that before the collision his car had moved 70 or 80 feet on the grass, that as soon as plaintiff turned to the west he began stopping his car, and that it was moving no more than 3 or 4 miles per hour when the collision occurred, and that immediately thereafter he discovered that the lever on plaintiff's car was at high speed and the emergency brake loose, and that his car had not slowed down. The grounds of negligence alleged by plaintiff in his petition were that: (1) Defendant operated his car negligently at dangerous speed; (2) on the wrong side of the street; and (3) without having it under control and the grounds of negligence charged by defendant in his counterclaim were (1) excessive speed; (2) without control of car; and (3) negligently diverted its course so as to run into defendant's car. The several errors may be disposed of in the order argued.

[1] I. A brother of defendant testified to having made certain measurements shortly after the collision and to having observed marks of automobile wheels on the ground and that these were indicated correctly on a map prepared by him. This plat was received in evidence over objection. Maps or diagrams shown to be correct representations of physical objects about which testimony is given may be exhibited before the jury to better enable them to understand the testimony, and witnesses may properly be allowed to refer thereto in giving testimony. Ordinarily such a map or diagram is to be considered merely in connection with the evidence adduced, and whether received in evidence or merely treated as illustrative thereof without formal offer is not important, though it is not a paper to be taken to the jury room on final submission. Watson v. Electric Co., 163 Iowa, 323, 144 N. W. 350;Adams v. State, 28 Fla. 511, 10 South. 106;State v. Lawlor, 28 Minn. 216, 9 N. W. 698. There was no error.

[2] II. At the close of the evidence plaintiff moved that the jury be instructed to find against the defendant on the counterclaim. The motion was overruled, and the issues raised submitted to the jury. Even if this were erroneous there was no prejudice for that nothing was allowed on the counterclaim. The court told the jury in the twelfth instruction that:

“If you have found for the plaintiff, then it will not be necessary for you to consider the claim of defendant upon his counterclaim, but if you have not so found then you will consider the claim of the defendant upon his counterclaim.”

This precluded offsetting damages, if any, allowed, on the petition against damages, if any, allowed, on the counterclaim or vice versa and exacted finding for one or the other only. We do not overlook the rule that to submit an issue on which there is no evidence...

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6 cases
  • Kemp v. Creston Transfer Co.
    • United States
    • U.S. District Court — Northern District of Iowa
    • March 12, 1947
    ...or about to pass in the opposite direction and that it is only upon meeting that the rule of yielding is invoked. Baker v. Zimmerman, 1917, 179 Iowa 272, 161 N.W. 479. There are a number of Iowa cases in However, by the enactment of what is now Section 321.364 the Iowa Legislature limited t......
  • Spry v. Lamont
    • United States
    • Iowa Supreme Court
    • January 12, 1965
    ...v. Court, 248 Iowa 654, 661-662, 82 N.W.2d 292, 296-297; Bennett v. Ryan, 206 Iowa 1263, 1265, 222 N.W. 16; Baker v. Zimmerman, 179 Iowa 272, 277-278, 161 N.W. 479; Herman & Marks v. Hass, 166 Iowa 340, 342, 147 N.W. 740, Ann.Cas.1917D, 543; Michaelsohn v. Smith, N.D., 113 N.W.2d 571, 5 Am.......
  • Farrell v. Cameron
    • United States
    • Utah Supreme Court
    • October 24, 1939
    ... ... ample opportunity to do so and nothing to apprise him that ... the oncoming driver has no such intention. Baker v ... Zimmerman , 179 Iowa 272, 161 N.W. 479; ... Travers v. Hartman , 5 Boyce 302, 28 Del ... 302, 307, 92 A. 855; Whitworth v. Riley , ... ...
  • Mickelson v. Forney
    • United States
    • Iowa Supreme Court
    • June 14, 1966
    ...57 N.W.2d 792, 797. Appellant contends the court erred in permitting Exhibit 13 to go to the jury room. He cites Baker v. Zimmerman, 179 Iowa 272, 277, 161 N.W. 479, 480, where we said: 'Maps or diagrams shown to be correct representations of physical objects about which testimony is given ......
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