Kime v. Owens
| Decision Date | 06 April 1921 |
| Docket Number | 33874 |
| Parties | J. H. KIME, Appellee, v. J. E. OWENS, Appellant |
| Court | Iowa Supreme Court |
Appeal from Woodbury District Court.--JOHN W. ANDERSON, Judge.
ACTION for damages for personal injuries resulting from an automobile collision upon a street intersection. There was a verdict for plaintiff, and judgment thereon for $ 6,708.40. The defendant appeals.
Affirmed.
Munger & Maennel and F. H. Schmidt, for appellant.
Kindig McGill, Stewart & Hatfield, for appellee.
The accident in question occurred upon the intersection of two streets of Sioux City, known as Pierce Street and Eighth Street. Pierce Street is a north and south street, and Eighth Street is an east and west street. The vehicle upon which plaintiff was riding, a Ford truck, approached the intersection from the south; the defendant approached the same from the west. Each vehicle was upon its proper side of the street. The collision occurred at the southeast corner of the intersection. The defendant's vehicle, a large touring car, struck the rear end of the plaintiff's vehicle with such force as to turn the truck at right angles, facing west. The plaintiff was thrown to the pavement, whereon he struck his head, and suffered severe injuries, which have already caused him much pain and suffering and confinement in the hospital, and from which he will doubtless suffer permanent disability. The specifications of negligence were: (1) Excessive speed; (2) driving upon the wrong side of the street; (3) failing to keep a proper lookout for vehicles passing on Pierce Street; (4) failing to give plaintiff's vehicle the right of way.
The appeal is presented here on four specific errors.
I. Complaint is directed to Paragraph 2 of the instructions of the court. By this paragraph, the court stated the issues made by the defendant's answer, including the following as a purported part thereof:
"And [defendant] states that, before driving into Pierce Street, that he looked along Pierce Street, south of Eighth, and saw no automobile or other vehicle approaching; that he slowed down his car, and, when a street car was proceeding south on Pierce Street, stopped at the north side of the intersection, defendant proceeded eastward across the intersection, * * *"
In explanation of this pleading and the complaint directed to this paragraph, it is made to appear from the evidence, without dispute, that, at and before the time of the accident, a street car running along Pierce Street was approaching the intersection from the north, and that it made its regular stop north of Eighth Street, at or about the moment of the collision of the motor vehicles. The defendant had referred in his pleading to this street car as being the only vehicle observable to him on Eighth Street, at the time that he approached it. The criticism now made on this part of the instruction is that it, in effect, informed the jury that the defendant admitted that he himself stopped at the north side of the intersection, at the time that the street car was proceeding toward the intersection. Such an admission, if made, would show the defendant to be presumptively negligent, as being upon the wrong side of Eighth Street. The plaintiff had, in fact, pleaded that defendant was on the wrong side of Eighth Street. The evidence, however, was wholly agreed on both sides that each party was upon the proper side of the street. The portion of the instruction above set forth is somewhat awkward in expression, and indicates the omission of a relative pronoun. The insertion of the pronoun would doubtless make a better expression of the manifest intent of the instruction, and would make it read as follows:
"And when a street car [which] was proceeding south on Pierce Street stopped at the north side of the intersection, defendant proceeded eastward across the intersection."
We think that the meaning thus expressed is the manifest meaning of the instruction as expressed, even though the expression be imperfect in a grammatical sense. Bad grammar will not be deemed fatal to legislation, when the intention thereof is manifest. In re Will of Petersen, 186 Iowa 75, 172 N.W. 206. Nor do we know of any reason for holding that a different rule should prevail in the construction of a judicial instruction. In the light of the whole record of the case as it appeared before the jury, including the undisputed evidence, we see no possibility of misunderstanding on the part of the jury as to the meaning of the instruction complained of.
II. Error is assigned upon the form of certain hypothetical questions put to the medical witnesses. The following examination of Dr. Barr is sufficiently illustrative of all:
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