Baker v. Zimmerman
Decision Date | 14 February 1917 |
Docket Number | No. 29843.,29843. |
Citation | 179 Iowa 272,161 N.W. 479 |
Parties | BAKER v. ZIMMERMAN. |
Court | Iowa 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.
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:
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:
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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