Barnes v. Gall

• Decision Date: 14 June 1960
• Docket Number: No. 50002,50002
• Citation: 103 N.W.2d 710,251 Iowa 921
• Parties: Jerry BARNES, by Gladys B. Barnes, Guardian and Next Friend, and Gladys B. Barnes, Appellants, v. Carl H. GALL, Appellee.
• Court: Iowa Supreme Court

Page 710

103 N.W.2d 710

251 Iowa 921

Jerry BARNES, by Gladys B. Barnes, Guardian and Next Friend, and Gladys B. Barnes, Appellants, v. Carl H. GALL, Appellee.

No. 50002.

Supreme Court of Iowa.

June 14, 1960.

Kindig, Beebe & McCluhan, and William J. Rawlings, Sioux City, for appellants.

Shull, Marshall, Mayne, Marks & Vizintos, Sioux City, for appellee.

THOMPSON, Justice.

The present action, brought by his guardian and next friend, asked to recover for injuries claimed to have been sustained by Jerry Barnes, a minor, in a collision between a motor scooter, operated by one Richard Morley, on which Barnes was riding, and an automobile owned and operated by the defendant. The accident occurred about 8:45 p. m. on May 28, 1958, at the intersection of Morningside and Davis Avenues, in Sioux City. The former runs generally north and south, the latter east and west. Gladys B. Barnes and Charles H. Barnes, parents of Jerry Barnes, by an amendment with permission of the court joined as parties plaintiff to recover certain expenses growing out of the injuries, and incorporated the original petition in their cause of action. The issues are the same as to all parties. We shall hereafter refer to Jerry Barnes as the plaintiff.

The motor scooter on which the plaintiff was riding was traveling north on Morningside and the defendant's automobile, just before the collision, was proceeding south. As he reached the intersection, the defendant made a left turn for the purpose of proceeding into Davis Avenue, and the collision resulted. The case was tried to a jury, with resulting verdict and judgment for the defendant.

I. The plaintiff assigns four errors as grounds for reversal. We shall consider them in order. The first is based upon a requested instruction, the material part of which is this: 'It follows that if the collision, which is the basis of this action, was caused concurrently by negligence on the part of both the defendant and the driver of the vehicle in which the plaintiff was riding, the negligence of the latter cannot be imputed to plaintiff and would not prevent recovery for injuries sustained by him. * * *'. The court did in fact tell the jury that the negligence of the driver of the motor scooter could not be imputed to the plaintiff, but refused to give the remainder of the quoted part of the instruction on concurrent negligence and the right of the plaintiff to recover if there was such. At the time of taking exceptions to the instructions given, the plaintiff also requested, as an addition to the court's instruction No. 11, that the jury be told that if it found the injuries complained of were caused by the concurrent negligence of the drivers of the motor scooter and of the automobile, plaintiff would be entitled to recover. This request was likewise refused; and following the court's ruling, the record shows a notation '(Exception)'.

These rulings form the basis of the plaintiff's first complaint. We have recently said under similar fact circumstances that it is reversible error to refuse a requested instruction on concurrent negligence. Law v. Hemmingsen, 249 Iowa 820, 824, 825, 826, 89 N.W.2d 386, 390, 391. The defendant meets the situation which confronts him at this stage of the proceedings by pointing out the allegation in plaintiff's petition that 'The negligence of the defendant was the sole and proximate cause of said collision and resulting injuries to the plaintiff.' So the defendant urges that, having so pleaded, the plaintiff must be held to have assumed the burden of showing that defendant's negligence was the 'sole' cause, there is no issue of concurrent negligence and so no requirement of an instruction thereon.

But plaintiff says he was not required to prove more than enough to entitle him to the relief asked for. With this position we agree. We set out Section 619.9, Code of 1958, I.C.A.: 'Amount of proof A party shall not be compelled to prove more than is necessary to entitle him to the relief asked for, or any lower degree included therein, nor more than sufficient to sustain his defense.'

This statute has appeared in our law since the Revision of 1860, and we have applied and followed the rule it states in many cases. Walters v. Iowa Electric Company, 203 Iowa 471, 474, 212 N.W. 884, 885; Chandler Milling & Manufacturing Company v. Greenwood Grocery Company, 200 Iowa 919, 921, 205 N.W. 787, 788; Coleman v. Iowa Railway Light & Power Company, 189 Iowa 1063, 1074, 178 N.W. 365, 369; Raine v. City of Dubuque, 169 Iowa 388, 391, 151 N.W. 518, 519; Forsythe v. Kluckhohn, 161 Iowa 267, 273, 142 N.W. 225, 227; Luttermann v. Romey, 143 Iowa 233, 236, 121 N.W. 1040, 1041; Russell v. Holder, 116 Iowa 188, 189, 89 N.W. 195, 196. The general rule is thus stated in 41 Am.Jur., Pleading, Sec. 369, pages 545-6: 'A party by pleading more facts than he needs to does not ordinarily obligate himself to prove them. He will not be prevented from proceeding in the trial of the action merely because he has alleged more than he has proved, where the unproved allegations are unnecessary to authorize recovery.'

It was not necessary for plaintiff to prove that the negligence of the defendant was the 'sole' proximate cause of the injuries, even though he had so pleaded. He made a case if he produced substantial evidence that the negligence of the defendant, concurring with that of the motor scooter operator, caused the injuries. The jury should have been so instructed.

II. Plaintiff's second assignment of error concerns the refusal of the trial court to give a requested instruction which would have told the jury that if it found the motor scooter was not lighted at the time of the collision, it must then determine whether this lack of lights was a proximate cause of the accident; and if it found the defendant could or should have seen the motor scooter, even though unlighted, the failure of lights would not be a proximate cause of the accident. We cannot consider the assigned error, for the reason that the record fails to show any exception taken to the refusal to give it. R.C.P. 196, 58 I.C.A. requires that objections shall be taken to 'giving or failing to give' any instruction; and 'no other grounds or objections shall be asserted thereafter or considered on appeal.'

However, in view of a reversal required by other divisions of this opinion, and a possible new trial, we think a proper instruction along the lines of the request should have been given. It brings to the attention of the court a matter upon which an instruction should be given if requested.

III. The third error assigned is predicated upon the refusal of ...