Holub v. Fitzgerald, 41161.
| Decision Date | 24 June 1932 |
| Docket Number | No. 41161.,41161. |
| Citation | 214 Iowa 857,243 N.W. 575 |
| Parties | HOLUB v. FITZGERALD. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Cerro Gordo County; Joseph J. Clark, Judge.
Action for damages growing out of a collision between two automobiles. Verdict for the plaintiff, and the defendant appeals.
Reversed.H. J. Bryant, of Mason City, and Putnam, Putnam & Forrest, of Des Moines, for appellant.
Smith & Feeney, of Mason City, for appellee.
Carolina avenue in the city of Mason City runs north and south. It is intersected at right angles by Tenth street and Eleventh street. Twelfth street does not intersect Carolina avenue, but joins it on the east. At Twelfth street, Carolina avenue, instead of continuing north, diverges to the northwest. In this manner something like a letter Y is formed by Twelfth street and Carolina avenue.
On April 1, 1930, the appellee was driving his automobile north on Carolina avenue, following a street car that moved along the center of the street. He stopped in the rear of the street car near Tenth street. The street car passed Eleventh street and was approximately 100 feet north of Eleventh street as the appellee approached to Eleventh street. The street car stopped at Twelfth street, and while it was standing at Twelfth street the appellee turned west on Eleventh street. As he was completing the turn and his front wheels had passed the west curb line of Carolina avenue, he was hit by appellant's automobile coming from the north.
There is a conflict in the evidence as to whether appellant's automobile came from the east on Twelfth street past the street car and then south on Carolina avenue to the point of the collision, or whether it came south on Carolina avenue from a point north and westerly from Twelfth street. The evidence of the appellee is to the effect that before he attempted to negotiate the turn from Carolina to Eleventh street he looked both north and south and that he did not see the appellant's approaching car. There was evidence with regard to the speed at which the appellant's car was moving as it is claimed it came from Twelfth street around the street car southward on Carolina avenue to the point of intersection.
[1][2][3][4] I. The appellant complains of the examination of three prospective jurors on their voir dire. The general character of the questions asked these prospective jurors was whether they were stockholders, officers, or directors of any insurance company writing automobile liability insurance. The answers were all in the negative. Counsel for the appellant moved for a mistrial and for a discharge of the jury and a continuation of the case. The court interrogated counsel for the appellee with respect to his purpose in asking the questions to which exceptions were taken, and counsel replied in effect that the purpose was solely to guide counsel in the exercise of peremptory challenges. The court ruled that the matter had not been persisted in in such a way as to prejudice the rights of the appellant and overruled the motion to discharge the jury. Thereafter, no further questions of like character were propounded.
We have had a similar question before us recently in the case of Raines v. Wilson, 239 N. W. 36, wherein we refused to reverse because of the claimed misconduct of counsel in propounding interrogatories of a similar character to prospective jurors upon their voir dire. We do not wish to be understood as holding that this practice is either to be commended or tolerated, at least in instances where it appears that the interrogatories are propounded for an improper purpose and are persisted in, and where it is evident that the purpose of the interrogatory is to bring an improper matter to the attention of the jury. The latitude that shall be allowed counsel in the examination of jurors upon their voir dire rests very largely in the discretion of the trial court. It is a matter of common knowledge that very wide latitude is usually allowed in this regard, perhaps often too wide for the expeditious disposal of litigation, and it is peculiarly within the province of the trial court to halt improper and prejudicial examination of jurors where an attempt is made to bring improper matter to the attention of the jury under the disguise and veil of interrogatories propounded on their voir dire. But a wide discretion must be left to the judgment of the trial court in dealing with situations of this kind when they arise, and we are not disposed to reverse unless it is apparent that such discretion has been abused and that prejudice has resulted.
The instant case comes within the rule laid down in Raines v. Wilson, supra.
[5][6] II. It is contended that the court erred in overruling the appellant's motion for a directed verdict on the ground that the evidence in behalf of the appellee did not negative contributory negligence on his part and that his evidence showed that he was guilty of contributory negligence.
It is a familiar rule of this court that contributory negligence as a general rule is a question for the jury. We think the record fairly presents a question for the determination of the jury as to appellee's contributory negligence, and that the court did not err in refusing to direct a verdict in behalf of appellant upon the ground of the claimed contributory negligence of the appellee.
III. The appellant contends that the court erred in stating the issues to the jury, the contention being that the court's instructions were a substantial copy of the allegations of the petition and that certain grounds of negligence therein referred to were not sustained by the evidence and that the court should have withdrawn these from the consideration of the jury and should not have stated them in...
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