Becvar v. Batesole, 42414.

• Decision Date: 18 September 1934
• Docket Number: No. 42414.,42414.
• Parties: BECVAR v. BATESOLE.
• Court: Iowa Supreme Court

218 Iowa 858

256 N.W. 297

BECVAR

v.BATESOLE.

No. 42414.

Supreme Court of Iowa.

Sept. 18, 1934.

Appeal from District Court, Marshall County; Clarence Nichols, Judge.

This is an action for damages resulting from personal injuries sustained by the plaintiff in an automobile collision. From a verdict and judgment in favor of plaintiff, defendant appeals.

Affirmed.

F. E. Northup, of Marshalltown, for appellant.

E. N. Farber, of Marshalltown, for appellee.

KINTZINGER, Justice.

The collision in this case occurred April 10, 1929, in Marshalltown, Iowa, between a city truck and an automobile driven by the defendant. At that time the plaintiff, appellee, was employed in the sewer department of the city of Marshalltown, Iowa. In the forenoon of that day, plaintiff and two fellow employees were returning from sewer work to the city tool house. Mr. Anderson, one of the employees, was the superintendent of sewers, and driver of the truck. The city truck was traveling east on State street, and the defendant's car was traveling north on First street in the business district of the city. The collision occurred near the northeast corner of State street and First street.

There is a sharp conflict in the evidence as to which vehicle entered the intersection first, and as to their rate of speed. Plaintiff and his witnesses testified that the defendant's car was traveling north on First street and was about 75 feet south of the intersection when the city truck, traveling east, was entering the intersection. The witnesses for defendant testified to the contrary. The witnesses for each side testified that their vehicle was being driven within the speed limit. It was the purpose of the city truck to proceed several blocks eastward on State street, and the purpose of the defendant to drive several blocks northerly on First street. Both parties claim that they entered the intersection first, and there is testimony to support each side. This question was therefore one for the jury.

The negligence alleged was that defendant was driving at an excessive rate of speed and greater than that permitted by the ordinances of the city of Marshalltown. The city ordinance fixes the maximum speed limit at 15 miles per hour in the business district. The collision occurred in the business district of the city. Plaintiff further alleges, in substance, that defendant was guilty of negligence in not keeping a proper lookout and driving his car in disregard of the rights of vehicles approaching First street from the west, and in not having his car under sufficient control to avoid colliding with the truck in which plaintiff was riding and which had already entered the intersection. Plaintiff's witnesses Anderson and Carlson both testified that defendant's car was being driven at a speed of 25 or 30 miles an hour, and that their truck was traveling about 15. Defendant's witnesses testified to the contrary. The record shows that plaintiff was sitting on the floor of the cab with the right door wide open; his feet hanging out of the truck. Plaintiff was facing south, and saw the defendant's car coming north on First street. The evidence shows that plaintiff received bodily injuries which disabled him from the performance of his work for over two months. At the conclusion of the evidence, the case was submitted to the jury, and verdict and judgment of $221 was rendered against the defendant, from which he appeals.

[1][2] I. Appellant contends that the court erred in giving instruction No. 2 because it did not properly submit the issue of contributory negligence alleged in defendant's answer. Among the issues submitted in instruction No. 1, the court told the jury “that plaintiff in his petition alleged that he was in the exercise of due care on his part at the time the collision occurred.” Instruction No. 3 tells the jury that “before the plaintiff can recover herein he must establish by a preponderance of the evidence, * * * (3) that the plaintiff was free from negligence which caused or contributed * * * to * * * the injury and damage of which he complains.” Instruction No. 2 tells the jury that the defendant in his answer denied each and every allegation in plaintiff's petition. This puts in issue the question of contributory negligence. Instruction No. 4 tells the jury that “a person is charged with contributory negligence when such person * * * is himself negligent, and such negligence either causes or contributes * * * to * * * the injury and damage of which he complains.” Instruction No. 14 tells the jury that, “if the plaintiff failed to exercise * * * ordinary care for his own safety and such failure * * * caused or contributed * * * to * * * the injury and damage * * * plaintiff cannot recover.” The terms “negligence” and “ordinary care” were properly explained to the jury in the instructions. The instructions must be construed together. From an examination of these instructions, it is apparent that the court fully submitted the issue of contributory negligence, and we find no error therein.

[3] II. Appellants also contend that the court erred in giving instruction No. 3 because it assumes that plaintiff entered the intersection first. The instruction complained of is as follows: “It appears without dispute herein that State Street * * * is a public highway running east and west * * * and that North First Street is a public highway running north * * * and intersects with State Street. That on April 10, 1929, plain...