Holderman v. Witmer
| Decision Date | 22 June 1914 |
| Docket Number | 29338 |
| Citation | 147 N.W. 926,166 Iowa 406 |
| Parties | IDA GRAY HOLDERMAN, Administratrix of the Estate of GARDNER L. GRAY, Deceased, Appellant, v. P. K. WITMER, Appellee |
| Court | Iowa Supreme Court |
Appeal from Polk District Court.--HON. W. H. MCHENRY, Judge.
ACTION by an administratrix for damages for the death of the decedent, caused as alleged by the negligent conduct of defendant's employee, whereby he drove defendant's automobile into collision with the decedent. At the close of the plaintiff's evidence the trial court directed a verdict for the defendant. From such order, the plaintiff has appealed.--Reversed.
Reversed and Remanded.
H. H Sawyer, for appellant.
Parker Parrish & Miller, for appellee.
The defendant was the owner of an automobile involved in an accident which caused the death of plaintiff's decedent. The driver of the automobile was one Larson, who was employed by the defendant as a chauffeur, and who was at the time driving the automobile in the service of his employer.
The accident occurred at a sidewalk crossing in Des Moines. It occurred in daylight at about 4 p. m., November 23d. The place was at the south side of Locust street at the regular sidewalk crossing, across Fifth street. These two streets intersect at right angles; Locust street running east and west, and Fifth street north and south. The decedent, Gardner L. Gray, was proceeding east along the south side of Locust street and across Fifth street. Just prior to the accident Larson also was proceeding east upon Locust street with the automobile. When he reached Fifth street he proceeded to turn south along such street. It was at this point that the automobile came in collision with Gray. Gray was thrown to the street to the left of the vehicle and received injuries from which he died within an hour.
Upon the record before us, three questions are presented for our consideration: (1) Did the trial court allow an improper latitude of cross-examination of the witness Larson? (2) Was there sufficient evidence tending to show the negligence of Larson to require submission of the question to the jury? (3) Was the decedent guilty of contributory negligence?
I. The plaintiff called the driver, Larson, as a witness. By the direct examination of this witness the plaintiff showed that the witness was the driver of the automobile in question at the time of the accident, and that he was at such time in the service of the defendant. The witness also described the automobile as it was on that day and certain of its appurtenances, such as curtains and wind-shield. On cross-examination the defendant cross-examined the witness as to all the details of the accident, and in effect made its defense by such cross-examination. This cross-examination was permitted by the court over the frequent objections of the plaintiff that it was not proper cross-examination. Error is now assigned upon the ruling of the court permitting the same.
The interest of the witness was adverse to the plaintiff; he being the party who was charged with the wrongful act. The plaintiff was clearly entitled to confine his direct examination to specific subjects, and was equally entitled to have the cross-examination strictly confined to the same subject. Collins v. Wells Fargo Express Co., 140 Iowa 304, 118 N.W. 401.
The line of cross-examination adopted went clearly beyond this rule. This error of itself, however, would not justify reversal of the case. Even though the cross-examination were improper at the time as such, it was within the discretion of the trial court to permit it to stand as testimony on behalf of the defendant, and to permit the defendant to make the witness his own for that purpose. This course, however, was not pursued, and the trial judge was finally misled by this cross-examination, in that he treated it as the evidence of plaintiff, and as conclusive upon her. The evidence thus given though on improper cross-examination, must nevertheless be regarded as a part of the record for the purpose of this appeal. But it cannot be regarded as conclusive against the plaintiff. In any event, therefore, we can only come to the decisive question by consideration of the entire evidence in the record, and we need give no further attention to the propriety of the...
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