Judd v. Rudolph

• Decision Date: 14 December 1928
• Docket Number: No. 39043.,39043.
• Parties: JUDD v. RUDOLPH ET AL.
• Court: Iowa Supreme Court

207 Iowa 113

222 N.W. 416

JUDD

v.RUDOLPH ET AL.

No. 39043.

Supreme Court of Iowa.

Dec. 14, 1928.

Appeal from District Court, Dubuque County; P. J. Nelson, Judge.

An action for damages resulting from an automobile collision. From a judgment on the verdict of a jury, the defendant H. A. Rudolph appeals. The defendants Howard Casey and Mrs. John Casey do not appeal. Reversed.Kenline, Roedell, Hoffmann & Tierney, of Dubuque, for appellant.

Frantzen, Bonson & Gilloon, of Dubuque, for appellee.

ALBERT, J.

In attempting to determine the correctness of certain instructions with reference to the pleadings, we have had much trouble in this case. After plaintiff filed his petition, a motion was made to strike from the pleadings by simply referring to certain lines on certain pages thereof. Such motions do not enlighten us very much here, for when these pleadings appear in the printed abstract the lines and pages do not correspond to the pages and lines of the original pleadings; hence it is impracticable, if not impossible, to apply motions or amendments so made to the pleadings as they appear in the printed abstract.

This automobile collision occurred about 11 o'clock on the night of September 29, 1925. Jackson street in the city of Dubuque runs north and south and is intersected by Thirty-Second street running east and west, both streets being paved. From this intersection eastward on Thirty-Second street, about two blocks, is a viaduct over the railroad track. There appears to have been no houses on Thirty-Second street between Jackson street and the viaduct. At the southeast corner of this intersection are billboards, on the south side of Thirty-Second street and the east side of Jackson street, making an angle at the corner. These boards are about 50 feet long and 10 or 12 feet high. At the northwest corner of this intersection is the Brunswick Hotel, a three-story brick building, flush with the lot lines on Jackson and Thirty-Second streets.

At the time in controversy, Judd, the plaintiff, was driving a Ford touring car. On his way home he had picked up as guests Gladys Droullard and Mark Gavin, who occupied the rear seat. He drove north on Jackson street and started through this intersection. At about the time or shortly after he passed the middle line of Thirty-Second street, he was struck by the cars of the two defendants. Rudolph, who was driving a Ford sedan, was coming from the east, and his car struck the Judd car about the rear wheel and fender, and the impact swung the rear of the Judd car to the west so that it was headed in a northeasterly or easterly direction, and while in that position it was struck by the Casey car, the occupants thrown out, and the Judd car pushed or rolled over until it struck the curb and landed against the east side of the brick building above referred to. There was evidence from which the jury might find that both Casey and Rudolph were driving at an excessive rate of speed and did not have their cars under control, and the cars were about one-half to a car length apart.

[1] The first question argued for reversal has to do with the admission of testimony. The Rudolph car had four passengers and the Casey car two. Most, if not all, of these parties testified in the case, and on cross-examination some of them, if not all, were asked about where they came from and how far they had traveled, and as to the relative position of the Casey and the Rudolph cars in coming the distance they had. This testimony, of course, was not very material, but at the same time there was nothing prejudicial in it, and there was no error in the court's permitting this cross-examination.

[2][3][4] Again, plaintiff testified that his car was struck by the Rudolph car “and headed me right into the Casey car.” It is claimed that this is a conclusion. It is, but it is one of those conclusions of fact which a witness is permitted to give. Plaintiff also testified, over objection, that he was not able to work and has suffered pain since the accident. We see nothing wrong in permitting him to so testify. A physician who attended him was questioned as to whether or not these pains were the result of the injury referred to, and he said that the pains might have varied, or the causes might have arisen, or the injury might leave a “hangover” such as complained of, and that the hangover might continue an indefinite length of time. We are unable to see how the defendant was injured by this testimony. The case of Phillips v. Leuth, 200 Iowa, 272, 204 N. W. 301, does not sustain appellant's objection, as the facts there are wholly different. See Greenway v. Taylor Co., 144 Iowa, 332, 122 N. W. 943;Bird v. Hart-Parr Co., 165 Iowa, 542, 146 N. W. 74;Brier v. C. R. I. & Pac. Ry. Co., 183 Iowa, 1212, 168 N. W. 339.

[5] After a proper showing of the existing conditions, witnesses who are properly qualified should be permitted to testify as to the distance in which a given car can be stopped. Judd was permitted to testify concerning the speed of the Rudolph and the Casey cars as they approached his car. He showed himself properly qualified, and his answers were admissible.

[6][7] Plaintiff testified that Gavin and Gladys Droullard, who were with him, were thrown from the car, and that Miss Droullard struck the brick building near a window in the second story and fell to the sidewalk, where she was picked up and carried into the hotel. Other witnesses testified to these same facts. The contention of the appellant is that none of this testimony was admissible. With this we do not agree. The jury was entitled to a picture of the situation as it existed at the time and shortly after the accident. Just where these parties were found as a result of the accident was all a part of the same transaction, and if for no other reason it might be considered in determining the speed of the cars. One witness testified that the girl was found on the sidewalk at the east side of the hotel, and “she was in a huddledup position.” This was also admissible, as it was all related to and connected with the transaction.

[8] Certain witnesses on cross-examination were asked whether or not in the trial of the state of Iowa v. Rudolph, for manslaughter, they had not given testimony conflicting with that given by them on the witness stand in the instant case, and the shorthand reporter was called with his minutes to prove statements these witnesses had made on the former trial. This is permissible, and no legal objection can be made thereto.

We have given attention to the other assignments of error in regard to the admissibility of testimony, and find nothing that could be the basis of reversible error.

[9] II. Serious assaults are made on certain of the instructions, among which is an attack on instruction No. 18, reading in part as follows: “You are instructed that all persons have an equal right to use the highways of this state in an equal manner.” No reference whatever is made in the instructions to the section of the statute about to be quoted, and such failure was excepted to and assigned as error.

This statement of the law contained in the above instruction may be accurate as an abstract proposition, but in the instant case recognition should be given to the provisions of section 5035, Code 1924, reading as follows: “Where two vehicles are approaching on any public street or highway so that their paths will intersect and there is danger of collision, the vehicle approaching the other from the right shall have the right of way.” A reading of this section shows the error in the instruction as applied to the facts of this case, for the instruction wholly ignores the fact that under this section and under the evidence, the jury could find that the Casey and the Rudolph cars had the right of way over the Judd car. See Switzer v. Baker, 178 Iowa, 1063, 160 N. W. 372;Rolfs v....