Hoegh v. See, 41449.

• Decision Date: 14 February 1933
• Docket Number: No. 41449.,41449.
• Parties: HOEGH v. SEE ET AL.
• Court: Iowa Supreme Court

215 Iowa 733

246 N.W. 787

HOEGH

v.SEE ET AL.

No. 41449.

Supreme Court of Iowa.

Feb. 14, 1933.

Appeal from District Court, Iowa County; R. G. Popham, Judge.

Action by plaintiff for damages for injuries sustained as result of automobile collision caused by alleged negligence of defendant Eldred See. Defendants filed counterclaim alleging plaintiff's negligence and asking for damages. Trial to a jury, which returned a verdict for plaintiff, and defendants appeal. The opinion states the facts.

Affirmed.Carl F. Becker, of Mt. Vernon, and Hal W. Byers, of Des Moines, for appellants.

Frank F. Messer and Kenneth M. Dunlop, both of Iowa City, for appellee.

MITCHELL, Justice.

Appellant Eldred See and appellee are both students at the University of Iowa, at Iowa City.

On the night of October 11, 1931, appellee, in company with two other young men students, attended a dance at Cedar Rapids. They left the dance shortly before 1 o'clock, and started back to Iowa City in appellee's automobile, a model T Ford touring car. Appellee was the driver of the automobile. The route followed by the three students was over highway No. 161, a regularly paved arterial highway, 18 feet in width, and with a black line marking the center. About 12 miles south of Cedar Rapids there is an S curve in said highway, which was the situs of the collision out of which this lawsuit developed.

There is a sharp conflict in the record as to the manner in which the accident occurred. Appellee claims that, as he neared the S curve, he saw the automobile driven by appellant Eldred See coming toward him, approximately three blocks away, and that as he came close to the starting of the bend in the road he noticed that the approaching automobile was on the wrong side of the highway. He estimated that it was traveling at a speed of between 40 and 50 miles per hour. Appellee claims that he was driving on the right-hand side of the pavement, but that, when he noticed that the other automobile was not in its proper position on the highway, he immediately turned to the right and applied his brakes, but, notwithstanding the fact that he had the right wheels of his automobile entirely off the pavement, the See automobile struck his car at about the left front wheel, pushing it off the pavement, and driving the rear end of the car onto the guard rail on the shoulder of the curve. Appellee and his companions were thrown through the windshield to the pavement in front of the car.

Appellee was taken by a passing motorist to the Surgical Out Clinic of the University Hospital, where it was found that he had sustained an injury to the left deltoid muscle, and a jagged laceration on the forehead, about 6 1/2 centimeters in length, which extended to the periosteum for a length of 2 centimeters. The bleeding vessels in his forehead were ligated, and his left arm put in a sling. The evidence shows that appellee carried his left arm in a sling for six or seven weeks, and that his forehead was bandaged for about two and a half weeks. He took heat and massage treatments for the injury to the shoulder muscle from the date of the accident to December 17, 1931. Appellee testified that he still had pain in his arm when there was a change in the weather, and that he suffered from headaches, especially in the right side of the head.

Appellee claims that at the time of the accident the lights on his car were burning; that he turned them on before he left Cedar Rapids, and that they were still burning after the accident had occurred.

Both young men who were with appellee on the night in question testified substantially as did appellee as to the manner in which the collision occurred, and with reference to the lights on appellee's car. Another witness for appellee testified that after the accident he walked over to appellee's automobile and that “the tail light was burning and the right front light.”

Appellant Eldred See, on the other hand, claims that at the time of the accident he was driving at a speed of about 35 miles per hour, that he was driving on the right-hand side of the pavement and carefully watching the road, and that he had good lights on his car and could distinguish objects 150 feet ahead. He testified that the lights were not burning on appellee's car, and that he did not see it approaching, but that it came around the curve on the wrong side of the highway and collided with his automobile.

A young woman was riding with Eldred See at the time of the accident. She testified in his behalf that he was driving about 35 miles per hour, and that she was watching the road and did not see appellee's car until it was about a car's length from the See automobile. She testified that appellee's automobile had one very dim light burning on the left-hand side, and that said car was over the black center line and on the wrong side of the pavement just previous to the accident.

The night was clear, and the pavement was dry.

As a result of the collision, the See automobile was damaged, and Eldred See received some cuts and bruises, the particular injury complained of being one to his knee. At the time of the trial he was wearing an elastic bandage on the injured knee, and testified that it bothered him in doing physical labor and walking, and that it gave him some pain.

Appellee's petition alleged the usual grounds of negligence and his own freedom from any negligence contributing to his injuries and damage, and asked for judgment against the appellants in the amount of $3,500.

Appellants filed separate answers and counterclaims; the answers being general denials. The counterclaim of appellant Jake See alleged damage to his automobile, due to appellee's negligence, and asked for judgment in the sum of $300. Eldred See in his counterclaim alleged the injury to his knee, and that same was caused by the negligence of appellee; alleged his freedom from contributory negligence; and asked for judgment in the sum of $2,000.

The cause was submitted to a jury, which returned a verdict for the appellee in the amount of $1,000.

[1] At the outset, appellants allege misconduct of the jury, which consisted of certain statements said to have been made by the jurors in their discussion of the case in the jury room after retiring to deliberate upon their verdict. The appellants attached to their motion for a new trial affidavits of various members of the jury, some of which stated that the jury discussed issues not in the evidence. Appellee attached to his resistance affidavits of other jurors denying the statements set out in the affidavits of the other jurors, and stating that the case was “decided upon the record as made at the trial, and in our deliberations, only the evidence in said matter was discussed and considered in arriving at our verdict.”

This court, in the case of Becker v. Town of Churdan, reported in 175 Iowa, page 159, at page 169, 157 N. W. 221, 225, said: “Most, if not all, the matters insisted upon inhered in the verdict and cannot be considered. * * * The trial court was justified in finding that there was no such misconduct on the part of any of the jurors as would be ground for a new trial. Its conclusion on conflicting testimony is binding upon us.”

And so in the case at bar, there being a conflict between the affidavits presented by the appellants and the affidavits presented by the appellee, the finding of the trial court is binding upon us.

[2][3] Appellants complain bitterly of certain statements made by the attorney for the appellee in his closing argument to the jury. Exception was taken to only one statement. This court will not consider objections to statements made by counsel in argument, unless objection was made at the time the statement was made in the trial of the case. The statement complained of and objected to is that appellee's counsel stated: “Mr. Becker would not want a big scar on his forehead while going all over the state of Iowa tryingthese automobile cases.” Counsel for appellee denied making the statement, but it appears in the record that Mr. Becker, counsel for appellants, in his argument to the jury, had belittled the injuries and the scar on appellee's forehead. The appellee was a law student in the University of Iowa, expecting to become a lawyer, and appellee's counsel, in his closing argument, in answer to the statements made by appellants' counsel, made reference to the fact that such a scar was not a desirable thing upon the face of a lawyer who was required to appear in the trial of cases before jurors, and that Mr. Becker would not want such a scar on his own forehead in going about trying automobile cases. It seems to us that this was a legitimate argument.

[4] Appellants complain of certain instructions given by the court to the jury. The basis of the complaint is that the court copied the pleadings word for word. A careful analysis of the statement made by the court shows that it is a fair and concise statement of the claims of the appellee.

[5] Appellants complain that the court erred in instructing the jury on the question of contributory negligence. The court, in its instruction on contributory negligence, said: “By contributory negligence is meant such...