Jakeway v. Allen

• Decision Date: 11 May 1940
• Docket Number: No. 45087.,45087.
• Citation: 227 Iowa 1182,290 N.W. 507
• Parties: JAKEWAY v. ALLEN.
• Court: Iowa Supreme Court

227 Iowa 1182

290 N.W. 507

JAKEWAY

v.ALLEN.

No. 45087.

Supreme Court of Iowa.

March 5, 1940.

Rehearing Denied May 11, 1940.

Appeal from District Court, Lucas County; Charles F. Wennerstrum, Judge.

Action for damages for injuries sustained in a collision between motorcycle and automobile. Verdict for plaintiff and defendant appeals.

Reversed.J. W. Kridelbaugh, of Chariton, and McMartin, Herrick, Sloan & Langdon, of Des Moines, for appellant.

G. C. Stuart and A. V. Hass, both of Chariton, for appellee.

HALE, Justice.

This case has been before this court on a former appeal. See Jakeway v. Allen, 282 N.W. 374. The facts as given in that opinion are much the same as were developed by the testimony in the retrial of the case, with some differences that are hereafter referred to, so that we do not consider it necessary to restate the facts.

Trial to a jury and verdict for plaintiff and judgment thereon. Defendant appeals.

The assignments of error in this case are mainly objections to the instructions. The defendant objects to instruction No. 10, together with instruction No. 9. In the latter the court stated that it was the duty of the defendant in approaching the meeting with the plaintiff to yield one half the traveled portion of the highway by turning to the right. The court then directed that if the jury found by the greater weight or preponderance of the evidence that the defendant, in approaching and meeting the plaintiff, was driving on the left-hand side of the highway and failed to yield one half the traveled portion by turning to the right, it would constitute prima facie evidence of negligence, and in the absence of evidence that the defendant was in the exercise of reasonable and ordinary care, the jury should find the defendant guilty of negligence in this respect.

[1] Instruction No. 10 defines prima facie evidence of negligence and states that violation of the above law of the road would be presumptive evidence of negligence, and would warrant a finding that the offending driver or operator was guilty of negligence, unless it was shown by the greater weight or preponderance of the evidence that under the circumstances such offending operator was justified and in the exercise of ordinary and reasonable care. Defendant cites Rich v. Herny, 222 Iowa 465, 269 N.W. 489;McKeever v. Batcheler, 219 Iowa 93, 257 N.W. 567;Hoover v. First Am. F. Ins. Co., 218 Iowa 559, 255 N.W. 705; and Gregory v. Sorensen, 208 Iowa 174, 225 N.W. 342. In these cases burden of proof was placed on defendant and was expressly required to be established by the defendant by a preponderance of the evidence. Instruction No. 10 does not go to that extent, but might be open to that construction. We think the use of the words “the greater weight or preponderance of the evidence” is not to be approved. But under the particular facts, there being no evidence of justification or any such issue, nor any attempt to show that the violation charged was not negligence, the instruction would not, in our opinion, in this case be prejudicial. See Stutzman v. Younkerman, 204 Iowa 1162, 216 N.W. 627;Lukin v. Marvel, 219 Iowa 773, 259 N.W. 782;Vander Beek v. Chicago & N.W. Ry Co., Iowa, 286 N.W. 452;Deweese v. Iowa Transit Lines, 218 Iowa 1327, 256 N.W. 428;McDougal v. Bormann, 211 Iowa 950, 954, 234 N.W. 807, 809.

[2] Defendant objects to instructions No. 9 and No. 17 as given, insisting that they lay down a different rule for plaintiff and defendant in regard to the rule as to prima facie evidence of negligence. Part of instruction No. 9 has been referred to heretofore. In the latter part of the instruction the jury were told that if they did not find “that defendant was driving on the wrong side of the road, or that he failed to yield one half of the traveled portion of the highway by turning to the right on meeting the plaintiff, * * * or if you find that in driving where he was the defendant was in the exercise of reasonable and ordinary care under the circumstances, then he was not guilty of negligence in such respect.” Reading the whole of instruction No. 9, we think the jury were told with sufficient clearness that before recovery could be had on this ground they must find that the violation of the law of the road was not in the exercise of reasonable and ordinary care.

[3] In instruction No. 17, which refers to the duty of the plaintiff, the jury were also informed that such failure would constitute prima facie evidence of negligence on his part unless he established by the evidence that he was in the exercise of ordinary care and caution, such as an ordinarily careful and prudent person would exercise under the circumstances. The burden so to show, of course, was properly laid upon him. We do not think that the instructions, read as a whole, though not expressed in the same manner, lay down any different rule for one party than for the other.

[4] The court's instruction on the duty of a driver when confronted with an emergency was in that part of the instructions relating to contributory negligence. Complaint is made that the excuse of emergency is not gauged by the driver's own judgment or impulse. We do not think the instruction so states. The jury were plainly told that the emergency rule would apply in a case “where it reasonably seemed to him (plaintiff), acting as an ordinarily careful and prudent person would act under like circumstances, that he could not safely turn to the right,” and throughout the instruction the jury were told that the plaintiff must act as an ordinarily careful and prudent person would act under the circumstances as they appeared to him as a reasonably prudent man. Reading the instruction as an entirety it is not open to the objection urged. Nor does it take away from the jury the question, but leaves for them to determine the question of his negligence under the circumstances, and the question of whether or not he did so act as a reasonably careful and prudent person; and correctly informed them that if he was confronted by an emergency and he acted as such reasonably careful and prudent person, it would not be negligence, or, in the case of the plaintiff, contributory negligence.

[5] The defendant assigns error in the giving of a part of instruction No. 6, which defines contributory negligence as negligence which contributes to cause the injury. The instruction, however, does not assume to give the rule in regard to the effect of contributory negligence, but such rule is found in instruction No. 13, where the jury were directed that before the plaintiff could recover he must establish by the greater weight or preponderance of the evidence that he himself was not guilty of any negligence that in any degree contributed to cause the collision. Nor do we see any reason to think that these different instructions of the court in relation to contributory negligence had the effect of telling the jury that the plaintiff's negligence must be a proximate cause before it could prevent recovery. We see nothing in the language that could be so construed. The instructions on contributory negligence were to the same effect as the form that has so often been recommended by this court-that the jury should be told that contributory negligence to defeat recovery must be such as would contribute in some manner or in some degree. It is true that such negligence must be causal. In Swan v. Dailey-Luce Auto Co., 221 Iowa 842, 265 N.W. 143, 146, the jury were instructed that contributory negligence must be such as would help to produce the injury before it would prevent recovery. The court there states, after stating the rule of law that the instructions must be considered as a whole: “While these instructions may not be considered model definitions of contributory negligence, we are constrained to hold that, when considered together and in connection with instruction No. 5 [defining negligence], they sufficiently advised the jury as to the meaning of contributory negligence, and are therefore not sufficiently prejudicial to constitute error.”

And in Smithson v. Mommsen, 224 Iowa 307, 276 N.W. 47, an instruction telling the jury that contributory negligence was such as became in any manner the cause of plaintiff's injury was approved by this court. We think there can be no complaint of such instructions.

[6] Defendant insists that plaintiff, as a matter of law, is shown to be guilty of contributory negligence-for one reason, that the evidence shows that he did not at any time sound a horn and that such failure was a violation of Code, section 5043, providing that an adequate signaling device shall in all cases be...