Gregory v. Suhr

• Decision Date: 15 February 1938
• Docket Number: 44004.
• Citation: 277 N.W. 721,224 Iowa 954
• Parties: GREGORY v. SUHR.
• Court: Iowa Supreme Court

277 N.W. 721

224 Iowa 954

GREGORY v. SUHR.

No. 44004.

Supreme Court of Iowa.

February 15, 1938

Appeal from District Court, Scott County; John E. Purcell, Judge.

Law action to recover damages on account of alleged negligence of defendant. From a judgment for plaintiff, defendant has appealed.

Affirmed.

Smith Swift & Maloney, of Davenport, and Putnam, Putnam, Filmore & Putnam, of Des Moines, for appellant.

F. E Northup, Harry Druker, and Boardman & Cartwright, all of Marshalltown, for appellee.

RICHARDS, Justice.

At about midnight on March 3, 1934, plaintiff was a traveler in an automobile proceeding westerly from Davenport toward Durant on Primary Highway No. 6. The car was being driven by its owner, one Craig. At the same time defendant Suhr was driving a Ford car easterly upon this highway. At a point about 3 miles east of Durant the two cars came into collision, resulting in physical injuries to plaintiff. Claiming that his injuries were caused by defendant Suhr's negligence, plaintiff brought this action for damages. Upon trial a verdict was returned for plaintiff and judgment rendered thereon. Defendant has appealed.

Defendant's first assignment of error is predicated on a claim that he plead in his answer that the collision of the cars was solely and proximately caused by the negligent acts of Craig, the driver of the car in which plaintiff was riding. Defendant urges that because he so pleaded the court erred in failing to instruct the jury " upon said pleaded issues and affirmative defenses."

What defendant in fact stated in his answer was, in substance, that the direct independent and proximate cause of plaintiff's injuries was the negligence of Craig in failing to drive at a careful and prudent speed in view of the fact that the night was dark and foggy, resulting in materially reduced visibility. But such alleged negligence of Craig, a third party, would not afford a defense if it concurred with negligence of defendant in causing the injury. The alleged negligence of Craig in itself would present a defense only in the event that such negligence amounted to the sole proximate cause of the injuries suffered. It will be noted that defendant's answer does not in terms state that Craig's negligence was the sole proximate cause of plaintiff's injuries. But if the words chosen by defendant were intended in that sense, he failed to advise the court that such was the purport of his pleading, as could have been done by requesting an instruction such as it is now claimed the court on its own motion should have given. Defendant did not ask for a specific instruction and we are of the opinion that the instructions were sufficient, and that defendant, having seen fit to request no amplification, cannot complain. The instruction given was that to recover, plaintiff must establish by the preponderance of the evidence that defendant was guilty of negligence and that such negligence was the proximate cause of plaintiff's injury. Under such instructions, the jury could not find defendant guilty of negligence which was the proximate cause of the injury, if the evidence showed that the negligence of some third party was the sole proximate cause. And if, under this instruction, the jury found that defendant was negligent and that this negligence was the proximate cause of the accident, any negligence on the part of Craig could not be the sole proximate cause. If in following the instruction the jury found that defendant was negligent, and that his negligence was the proximate cause, defendant could not be prejudiced by a failure of the court to instruct the jury to consider an alleged sole proximate cause which could not exist. Lang v. Sidall, 218 Iowa 263, 254 N.W. 783; Stingley v. Crawford, 219 Iowa 509, 258 N.W. 316; Newland v. G. McClelland & Son, 217 Iowa 568, 250 N.W. 229.

Defendant's answer contained an allegation that plaintiff was guilty of contributory negligence in that he was aware of the fog and surrounding circumstances, and knew the dangers of traveling under such conditions and continued to thus travel without warning or protest, although, owing to the fog, the lights of the car in which he was riding were not visible at a distance of 500 feet and did not disclose a substantial object 75 feet ahead of the car. Defendant says the court did not specifically instruct with respect to these allegations, to the prejudice of defendant. But the jury was charged generally with respect to negligence and contributory negligence including an instruction that it is the duty of every person at all times and in all situations to use the care which an ordinary prudent person would use under the circumstances to avoid injury to his own person, in order to be in a position to recover damages, and a failure to exercise such care, if injury results therefrom, in whole or in part, constitutes contributory negligence. Defendant does not challenge the correctness of the instructions, and in our opinion, in the absence of any request for a more particular application of the instructions to these purported facts alleged in his answer, defendant may not be heard to complain of the sufficiency of the instructions. These allegations in the answer, with reference to which defendant claims there should have been a special instruction, were but statements of evidentiary matters, of the surrounding circumstances, of the fact that there was darkness and a fog, of the reduced visibility, and were but a portion of the conditions and circumstances that existed. The jury was instructed to give consideration to all the conditions and circumstances. Upon the record before us the reasonable view of the situation is that, under the instructions that were given, the jury took into consideration the circumstance that there was a fog, and its effect on visibility, as well as the other surroundings, when it weighed the acts of plaintiff with respect to contributory negligence and that a reversal is not warranted. In Van Norman v. Modern Brotherhood, 143 Iowa 536, 121 N.W. 1080, 1085, it is said:

" The practice of embodying in an instruction a recitation of facts on which a party relies is not to be encouraged because of the tendency to thereby unduly magnify the importance of the matters thus selected for specific mention."

See, also, Conover v. Hasselman, 199 Iowa 661, 202 N.W. 502, and Whitman v. Chicago G. W. Ry. Co., 171 Iowa 277, 153 N.W. 1023. In Kelly v. Chicago, R.I. & P. Ry. Co., 138 Iowa 273, 114 N.W. 536, 538, 128 Am.St.Rep. 195, it is stated:

" It is not often practicable, and still less often advisable, for the trial court in framing its instructions to make specific mention of the items of evidence bearing upon any given issue. The office of an instruction is to state the rule of law applicable and pertinent to the matter to be determined, and not to marshal the evidence, or by special mention to give undue prominence to any particular phase or feature of the fact case-made by either party to the controversy. Nor can the court be expected to give express or special warning against every possible mistake or

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