Jacobsen v. Hala

• Decision Date: 12 November 1963
• Docket Number: No. 51037,51037
• Citation: 125 N.W.2d 500,255 Iowa 918
• Parties: Norma Jeanne JACOBSEN, Appellant, v. Anton HALA, Appellee.
• Court: Iowa Supreme Court

Page 500

125 N.W.2d 500

255 Iowa 918

Norma Jeanne JACOBSEN, Appellant, v. Anton HALA, Appellee.

No. 51037.

Supreme Court of Iowa.

Nov. 12, 1963.

Duffield, Pinegar & Tapscott, Des Moines, Ernest W. Wilcke, Spirit Lake, and Donald B. Kliebenstein, Gladbrook, for appellant.

Cartwright, Druker, Ryden & Fagg, Marshalltown, and Mickelson & Roan, Toledo, for appellee.

PETERSON, Justice.

This is an action brought by plaintiff to recover damages for personal injuries allegedly caused by the negligence of defendant in operating his motor vehicle on a slick, snow-covered graveled road in Tama County. Plaintiff alleges he operated it in such a manner that it collided with the rear end of plaintiff's vehicle causing serious bodily injury. Defendant denied any negligence and denied plaintiff was free from contributory negligence. The jury returned a verdict for defendant. Plaintiff appealed.

Plaintiff makes assignment of five alleged errors in connection with the trial of the case. 1. In ruling on evidence pertaining to what plaintiff alleges to be cross examination by defendant's counsel of defendant. 2. Sustaining defendant's objection to plaintiff's exhibit A-O, a photograph of defendant's car taken after the accident. 3. In not instructing the jury that defendant was guilty of negligence as a matter of law. 4. In giving instruction 24 to the jury with reference to the slow travel of plaintiff's car. 5. In overruling plaintiff's motion for new trial based on newly discovered evidence.

I. Plaintiff is a forty year old housewife, the mother of three children, and also a registered nurse working part time. She lived with her husband at the time of the accident on a farm on what is known as Gilman Road which farm was located approximately 7 1/2 miles southwest of Tama.

March 10, 1959, plaintiff was taking her twin girls to school, and her little girl to a neighbor's home for the day on her way to work at the hospital. The school house was located on Gilman Road some distance west of the Jacobsen home. After she left her two little girls at the school she proceeded easterly on Gilman Road to the home of the neighbor to leave the little girl and then on easterly, ot highway 63 leading into the city of Tama. The road is graveled, 26 feet wide and located about 7 miles south of Tama. From a point about 1840 feet west of highway No. 63 there is a gradual rise going east to a point close to highway 63.

The night before the accident there had been a snow, and the day before it had been thawing, so that the ground was somewhat soft. The snow had been heavy during the winter and the road was blocked with drifts in some places. In places the maintainer had pushed the snow back so that it was as high as a car and most of the distance it was one way traffic.

On the morning of the collision there was considerable fog in places. As plaintiff proceeded east from the school house toward highway 63 she found a short distance where the road is level and then it starts up the hill.

Plaintiff testified when she was about seven or eight hundred feet from the crest of the hill defendant came over the top of the hill and proceeded down the hill towards her. She states she stopped because she could not pass defendant on the one way road and she backed down to where it was level. The defendant Mr. Hala with his little girl in his car passed her, driving west toward the school house.

Plaintiff then proceeded easterly again driving up the hill over the one way traffic road. When she had proceeded part way up the hill her little girl said: 'Mamma, here comes a car fast.' Simultaneously with the little girl's expression Mr. Hala's car struck the rear end of plaintiff's car. Mr. Hala's testimony concerning the collision was as follows:

'Q. Anton, did you observe the car that you saw ahead of you as to whether it was moving? A. Yes, it was.

'Q. And in what direction was it moving? A. Backwards toward me.

'Q. Did it have any lights on, Anton? A. No.

'Q. When you saw that car was it also in the fog? A. Yes, sir.

'Q. How fast were you driving before you came into the fog? A. I didn't observe the speedometer, but I assume in that speed and someplace, 30 to 35 miles an hour.'

There was considerable damage caused to the rear end of plaintiff's car and also to the front end of defendant's car.

Plaintiff denied she was backing her car down hill at the time defendant's car struck her. She contended she was proceeding easterly up the hill at all times. After the collision both parties went to the home of Mr. and Mrs. Huston near the point of collision. They called the sheriff's office and a Deputy Sheriff came out to make a report on the collision. Plaintiff called her insurance agent and he came out and prepared a report to his company, to which we will refer later.

II. Plaintiff contends the court committed error in permitting defendant's counsel to ask certain questions of defendant when he was on the witness stand. We will state the examination to which plaintiff's counsel objects. Mr. Hala testified: 'The first thing I observed was the outline of a back window of Mrs. Jacobsen's--or I mean a car--outline of that window, how the lights were shining on it. I guess it must have reflected back to me. That is the first think I observed. So I stepped on the brakes and skidded. And, of course, that was that quick. I made some inspection afterwards to determine about how far my wheels had slid and where they slid it was all mixed ice and snow and packed down snow and slippery.'

'Q. Did you make an effort to turn to the right or the left before your car ran into her car? A. No, I didn't.

'Q. Why not? A. Because them tracks were just like troughs. I estimate that I slid between 30 and 35 feet after I applied the brakes. * * * I can't tell you how fast I was going when I struck her car. I wouldn't know whether the cars moved after impact.

'Q. Well, did they or did they not?

Mr. Duffield: 'I believe I would have to object to this as cross examination of his own witness, the witness having already testified that he wouldn't know.'

Mr. Druker:

'Q. What do you mean by 'I don't know'? Mr. Duffield: I object to that as a type of cross examination of his own witness.'

The Court: 'Let him answer.'

Mr. Druker:

'Q. Go ahead. A. No, they didn't. Mr. Duffield: I move to strike that as having been in response to cross examination of his own witness after proper objection was made to an attempt to cross examine his own witness.'

The court: 'Overruled.'

We said in Baker v. Roberts & Beier, 209 Iowa 290, 228 N.W. 9: 'The rule is too well settled to require discussion that a party to an action may not impeach his own witnesses.'

However, the question involved in the case is whether or not the discussion as above outlined was cross examination by defendant's counsel of his own witness.

Cross examination is defined as a leading and searching inquiry of the witness for further disclosure touching the particular matters detailed by him in his direct examination, tending to show the improbability of, or to throw doubt upon statements, made by the witness. Seiner v. State, 138 Neb. 130, 292 N.W. 112. It has been properly stated that explanation of an answer by one's own witness does not constitute cross examination. 98 C.J.S. Witnesses § 368. In Note 1 of footnote 79 of the section appears the following: 'Defense counsel's inquiry on direct examination, as to what witness meant by answer, did not constitute cross-examination of his own witness.'

On consideration of appellant's claim, it really was directed only to the propriety of the question 'What do you mean by 'I don't know.'?' The answer of defendant was 'No, they didn't.'

It is evident that the colloquy referred to above was not cross examination. It simply asked for an explanation of defendant's immediately preceding answer. Referring to the citation as to 98 C.J.S., supra, this was not cross examination. The question was not an attempt on the part of defendant's counsel to impeach his own witness, but rather an attempt to clarify his answer.

At any rate, plaintiff did not suffer any prejudice from these minor questions and answers. They had no bearing or effect upon the important issues in the case.

III. Error is alleged in that the trial court refused to admit a certain photograph known as plaintiff's exhibit AO in evidence.

The photograph in question was a picture taken of the front end of defendant's car.

The admissibility of photographs is largely within the discretion of the trial court. The court has the opportunity of examining the photographs and hear the evidence given by the witness who is identifying the photograph and describing what it shows or does not show. Hansen v. Franklin County, 247 Iowa 1287, 78 N.W.2d 805; Gose v. True, 197 Iowa 1094, 198 N.W. 528; Nolte v. Chicago R. I. & P. R. Co., 165 Iowa 721, 147 N.W. 192; Ingebretsen v. Minneapolis & St. L. R. Co., 176 Iowa 74, 83, 155 N.W. 327, 330.

In the case of Gose v. True, supra, we quoted from the Nolte case as follows: 'The admission or rejection of a photograph in evidence is a matter addressed to the sound discretion of the court, and in the absence of an abuse of such discretion, the court's ruling will not be disturbed on appeal.'

In the case of Hansen v. Franklin County, supra, this court stated: 'Whether photographs are to be admitted or excluded, * * * Plaintiff concedes that the general rule is that the admissibility of [his] photographs is within the fair discretion of the trial court.'

In the Ingebretsen case we said: 'Whether photographs are to be admitted or excluded is a question very largely, if not entirely, in the discretion of the court, and this is more emphatically the case where, as we have said, they are intended to perform the office of an illustration or diagram in aid of oral or written testimony, rather than as being in themselves independent evidence.'

In the case at bar the defendant...