Gross v. Bakery
| Decision Date | 21 November 1929 |
| Docket Number | 39565 |
| Parties | HENRY L. GROSS, Appellee, v. HUMKE SANITARY BAKERY, Appellant |
| Court | Iowa Supreme Court |
Appeal from Dubuque District Court.--D. E. MAGUIRE, Judge.
This was an action by the plaintiff to recover damages from the defendant for personal injuries suffered by the former. These injuries resulted from a collision between the defendant's truck, driven by his servant, and a horse-drawn sled in which the plaintiff was riding. There was a verdict for the plaintiff, and judgment was duly entered thereon. From this the defendant appeals.
Reversed.
Kenline Roedell, Hoffmann & Tierney, for appellant.
Lyon & Willging and Robert Bonson, for appellee.
KINDIG J. ALBERT, C. J., and EVANS, FAVILLE, DE GRAFF, MORLING, and GRIMM, JJ., concur. STEVENS and WAGNER, JJ., dissent.
The accident out of which this suit for personal injuries grew, occurred on the 16th day of January, 1926, at the intersection of Eleventh and Main Streets, in Dubuque. Eleventh Street runs east and west, while Main Street extends in a northerly and southerly direction. These public thoroughfares intersect each other at right angles. At 6:30 or 7 o'clock in the morning, the plaintiff-appellee, a mail carrier for the United States government, was proceeding westward with a horse and sled, across Main Street, on the north side of Eleventh Street, while the defendant-appellant's truck, operated by an employee, was traveling southward on the west side of Main Street; and when entering the intersection, the motor vehicle came in contact with the horse-drawn sled. Thus the collision occurred, and appellee was injured. On Main Street there are double street-car tracks, and, during the time under consideration, a street car either was proceeding southward a few feet north of the intersection, or had arrived at the north line of Eleventh Street and was standing still. As to whether the street car was moving or standing still, there is some conflict in the evidence.
Appellant contends that its truck passed the moving street car approximately 60 feet north of the intersection, and then proceeded down to Eleventh Street, where the impact occurred. This accident happened, according to appellant's theory, because its truck driver did not see appellee's horse and sled until they suddenly emerged from the darkness into the range of the truck's headlights. Appellee, on the other hand, maintains that the street car had come to a full stop, at or near the north line of Eleventh Street, and the appellant's driver proceeded from the north past the standing car, and without warning carelessly entered the intersection. In fact, appellee insists that appellant's driver ran into the horse and sled although they were in full view.
A jury returned a verdict for the appellee, and judgment was rendered thereon by the court. Therefore, this appeal was taken. Many errors are assigned, but we find it necessary to consider only one of them. It relates to the following portion of Instruction No. 9, given the jury by the trial court:
* * *"
Said instruction is identical with Section 5037 of the 1924 Code:
I. Insistence is made by appellant that there is no basis, under this record, for that charge to the jury. Substantial evidence does not exist which supports the proposition that the street car stopped for the purpose of, or was, "taking on and discharging passengers." While this fact may not be conceded by appellee, yet it is not seriously contended by him that such evidence appears in the record. According to appellee's testimony, the street car in fact stopped, yet manifestly there is no substantial evidence tending to show that it did so for the purposes aforesaid.
Was there prejudice, then, in giving that charge to the jury?
II. An affirmative answer to that interrogatory is made by appellant. That response is based upon three reasons. Two of them will here be considered together. First, it is argued that the trial court in no event can submit an issue raised by the petition if the evidence does not support the same. Generally speaking, that is true. Veith v. Cassidy, 201 Iowa 376, 207 N.W. 328; Douda v. Chicago, R. I. & P. R. Co., 141 Iowa 82, 119 N.W. 272; Arnd v. Aylesworth, 136 Iowa 297, 111 N.W. 407.
Next appellant urges its second point, which is the converse of the first. Briefly, it is that an unpleaded issue should not be presented to the jury, even though there may be evidence supporting it. Tabler v. Evans, 202 Iowa 1386, 212 N.W. 161. Both of these legal principles are well recognized, but neither has application in the case at bar, because the trial court did not submit to the jury the foregoing instruction as the embodiment of an issue. Rather than so doing, that tribunal gave the charge under dispute as a definition or explanation of negligence, to be used by the jury in determining whether the appellant was liable under the issues pleaded and supported in the record. Those issues which were pleaded by appellee, supported in the evidence, and submitted to the jury, were appellant's negligence "in driving its automobile past a standing street car and into the intersection without having said automobile under reasonable control; in failing to stop its automobile before colliding with plaintiff's horse and sleigh; in not having its automobile under control; and in failing to reduce the speed thereof to a reasonable and proper rate when approaching and traversing the intersection of a public highway; in driving its automobile and failing to observe the plaintiff in time to avoid the collision when plaintiff was in the intersection and making the crossing; in approaching the intersection while his [the automobile driver's] view was obstructed, without...
To continue reading
Request your trial