Kaufman v. Borg, 41269.

• Decision Date: 05 April 1932
• Docket Number: No. 41269.,41269.
• Citation: 214 Iowa 293,242 N.W. 104
• Parties: KAUFMAN v. BORG.
• Court: Iowa Supreme Court

214 Iowa 293

242 N.W. 104

KAUFMAN

v.BORG.

No. 41269.

Supreme Court of Iowa.

April 5, 1932.

Appeal from District Court, Howard County; W. L. Eichendorf, Judge.

Action to recover damages for injuries sustained by the plaintiff while riding as a guest in an automobile driven by the defendant. The jury returned a verdict in behalf of the plaintiff, and the defendant appeals.

Reversed.W. L. Barker, of Cresco, and Putnam, Putnam & Forrest, of Des Moines, for appellant.

Elwood & Elwood and McCook & Lyons, all of Cresco, for appellee.

FAVILLE, J.

On or about the 1st day of June, 1930, the appellee and her husband were the guests of the appellant in riding in appellant's automobile to attend a picnic. On the homeward trip the appellant was driving his automobile on a graveled highway, the traveled portion of which was about 24 feet in width. It is the contention of the appellee that the appellant was driving the automobile at said time at a speed of from 50 to 60 miles an hour, while the appellant contends that the speed of the car was about 35 to 40 miles an hour. It appears that while so driving the automobile left the traveled track and passed over the edge of the shoulder of the highway so that at first the two right-hand wheels were in the ditch, which was not very deep. The automobile proceeded for some little distance in this manner, and then moved farther to the right so that all four wheels were in the ditch. It appears that the speed of the automobile was not materially slackened while it was progressing along the ditch, and that the appellant attempted to turn the automobile from the ditch back upon the traveled portion of the highway. This required him to cramp the fore wheels to the left. He was unable to accomplish this maneuver and the automobile turned over several times, throwing out all the occupants and injuring the appellee. In his answer the appellant pleaded that an emergency was created by a deflated tire. It appears that after the right wheels of the automobile first entered the ditch the automobilemoved approximately 210 feet before it turned over, and appellee contends in argument that the appellant was guilty of reckless driving in the operation of the automobile after the time that the wheels first entered the ditch, and in driving it along the ditch at a high rate of speed, and in attempting to turn it back upon the traveled portion of the highway in the manner described.

The foregoing is a sufficient outline of the record and the issues for the consideration of the errors relied upon for reversal.

[1] I. Upon the voir dire it appears that a prospective juror was asked as to whether or not he was a policyholder or in any way interested in a certain insurance association. Objection was made to this question, and a colloquy was held between the court and counsel in regard to said matter in the absence of the jury, and at said time, and in the absence of the jury, the court stated that it was satisfied that the reference made to the insurance company was made by appellee's counsel in good faith, and a ruling on the motion of the defendant to discharge the jury and continue the case was reserved. The matter seems to have ended at this point. The jury was selected and the cause tried, and it appears that the court made no ruling upon the motion of the appellant to discharge the jury until more than four months after the verdict and judgment; the entry reciting that the court had overlooked the entry of this ruling prior to said time.

Assuming, without deciding, that the question of error is properly before us, the action of the trial court did not constitute reversible error. We have recently had occasion to consider this question in Raines v. Wilson, 239 N. W. 36. The matter of the latitude that shall be allowed in the examination of jurors upon voir dire necessarily and properly rests very largely in the discretion of the trial court. Improper matters should not be inquired into and the examination should in no way be permitted to be utilized for the purpose of attempting to inject prejudicial matter improperly into the minds of the jury. Questions of procedure of this character are especially within the discretion of the trial court, and in the case at bar we are satisfied from an examination of the record that no prejudicial error was committed.

[2] II. It is contended by appellant that the court erred in giving instruction No. 3, wherein reference is made to a prior instruction defining the issues in which the word “careless” is used.

Nowhere in the exceptions to the instructions or in the motion for a new trial does it appear that the appellant called the attention of the trial court to the particular error urged against this instruction. Therefore the appellant is in no position to complain of the alleged error, and we cannot review it.

[3] III. The court instructed the jury as to the meaning of “recklessness,” “negligence,” and “contributory negligence,” and also as to the “reasonable care and diligence an ordinarily prudent person would use under the circumstances (of an emergency) as shown by the evidence.”

The appellant...