Clark v. Van Vleck

• Decision Date: 02 July 1907
• Citation: Clark v. Van Vleck, 135 Iowa 194, 112 N.W. 648 (Iowa 1907)
• Parties: CLARK v. VAN VLECK.
• Court: Iowa Supreme Court

135 Iowa 194

112 N.W. 648

CLARK

v.VAN VLECK.

Supreme Court of Iowa.

July 2, 1907.

Appeal from District Court, Plymouth County; J. L. Kennedy, Judge.

Action at law to recover damages for injuries sustained by plaintiff due to a collision with an automobile driven by defendant.Trial to a jury, verdict and judgment for plaintiff, and defendant appeals.Affirmed.F. W. Sargent and Struble & Struble, for appellant.

Dickson & Page and P. A. Boland, for appellee.

DEEMER, J.

Plaintiff was struck and injured by an automobile driven by defendant upon one of the streets of Sioux City.At the time of the accident defendant was driving his car eastward on the south side of what is known as “West Seventh Street.”About the time he turned into this street, an ambulance had been driven to, and backed upon, the south side of the street, and defendant was obliged to go around this ambulance.This he could do by passing out to and along the double-tracked street car tracks in the center of the street, and back to the south side of the street, or by passing across the tracks to the north slde of the street, and in due season to the right-hand or south side of the street.It is claimed that he took the latter course, passed over the tracks, and was passing eastward on the north side of the street, looking back at the ambulance, when he struck the plaintiff, who was about 85 feet from the ambulance, passing from the south to the north side of the street, where his home was situated.Plaintiff is a boy five years of age, and there is no claim that he was guilty of any negligence.Defendant claims that after he passed to the north side of the street he encountered a wagon coming from the east, and that he turned southward to avoid the wagon, and that just as he was passing it plaintiff jumped out from the rear of the wagon and got into the way of the automobile in such a manner that he(defendant) could not stop his machine and avoid the accident.The jury evidently found that plaintiff's version of the affair was correct, and it returned a verdict for him in the sum of $1,000.

The appeal presents many questions, to the more material of which we shall refer during the course of the opinion.Plaintiff offered in evidence that part of page 152 of the Code Supplement of 1902 showing the expectancy of life of a child five years of age.The testimony was received over defendant's objections, and of this ruling complaint is made.This table is embodied in the Code as a means for determining the valuation or present worth of life and term estates for the use of courts in the assessment of collateral inheritance taxes.It is stated in the Code Supplement that they are based upon the “actuaries and combined experience tables,” and were prepared pursuant to section 1471a of the said Code Supplement.As such, we think they were admissible.No matter where found, these tables, if properly established and authenticated, are admissible in evidence in personal injury cases, where the injury is claimed to be permanent.Beems v. Railroad, 67 Iowa, 435, 25 N. W. 693;Knott v. Peterson, 125 Iowa, 404, 101 N. W. 173.No more authentic source could be thought of than a publication under the direction of the Legislature.Some courts hold that judicial notice should be taken of these tables.We need not go to that extent; but it is, perhaps, not improper to say that no prejudice is shown from the admission of these tables.A comparison thereof with those we have at hand shows no material discrepancies.Many courts take judicial notice of the probable duration of human life as shown by the motality tables.See cases cited in 8 Ency. of Evidence, p. 639.But where such notice is not taken, the tables need not be found in any given book.Thus encyclopedia, statutes, reported decisions, and other accepted law books may be received in evidence.C., R. I. & P. R. R. v. Hambel, 89 N. W. 643, 2 Neb.(Unof.) 607;Louisville Co. v. Kelly, 38 S. W. 852, 40 S. W. 452, 100 Ky. 421;Nelson v. Railroad, 62 N. W. 993, 104 Mich. 582;Atty. Gen. v. Insurance Co., 82 N. Y. 172;Crouse v. C. & N. W. R. R., 78 N. W. 446, 778, 102 Wis. 196;Scagel v. Railroad, 83 Iowa, 380, 49 N. W. 990.As a rule only such preliminary proof is required as is satisfactory to the trial court and even this may be dispensed with according to some cases.Atl. Ry. v. Monk, 45 S. E. 494, 118 Ga. 449;Pearl v. Railroad, 115 Iowa, 535, 88 N. W. 1078.

2.Defendant was a witness on his own behalf, and was asked this question: “State whether or not at the time immediately after the accident you had any conversation with the father of the boy on the subject of how the accident occurred.”Objection to the question was sustained because not binding upon plaintiff and hearsay.Thereafter defendant made the following offer: “Defendant's counsel now offer to prove by the defendant, Van Vleck, as a witness while on the stand, that immediately after the accident referred to, and about the time the boy was being carried from the street into the home of his parents, the father inquired of the defendant how the accident occurred, to which the defendant answered stating the occurrences attending the accident, and that the boy had run out from behind the wagon and into or upon the automobile of the defendant at a distance of five or six feet, and has been injured by coming in contact with the automobile.And, also, in the conversation immediately after the accident, and while the boy was being carried from the street, the said Clark, the father of the plaintiff, made a statement to this defendant that he understood it was not the fault of the defendant, and that he further stated at the time that the plaintiff, Stuart Clark, had been sickly, and has just gotten out of bed, and it was too bad that he had to return to his bed on the same day on which he had just gotten out of his bed.”The latter part of this offer to show what the father said his understanding was, and as to the condition of the boy's health, was clearly hearsay, and not binding upon plaintiff.And the same may be said of the first part of the offer, unless it be that the declarations of the defendant therein referred to were part of the res gestæ and admissible as such.The declaration made was called out by inquiries from the father and was self-serving in character.These suggestions are not always controlling, however.The true test is: Were the declarations so closely connected with the transaction in question as to be, in effect, a part of it?Were they the natural and spontaneous utterances of the declarant, and so made as to indicate no opportunity for premeditation or design.They must also relate to immediate and present events, and not be merely a narrative of a part transaction or statement of opinion.And as a general rule the admissibility of such evidence lies largely within the discretion of the trial court.Christopherson v. Railroad (Iowa)109 N. W. 1077.The real test seems to be the spontaneity of the declaration.Waldele v. Railroad, 95 N. Y. 274, 47 Am. Rep. 41.Applying these tests, there seems to have been no error in the ruling of the trial court in excluding the testimony.The testimony shows that after the child was struck a police officer of the city, who was close at hand, walked up to defendant and asked him his name, which was given.Defendant then said if he was wanted for anything he would stay.To this the officer responded by saying that he should wait until he saw the boy's father.The father came out, and, after the officer had talked with him, the defendant went away.It also appears that,...