Mcspadden v. Axmear
| Decision Date | 08 February 1921 |
| Citation | 181 N.W. 4,191 Iowa 547 |
| Parties | CLINTON MCSPADDEN, Appellant, v. G. W. AXMEAR, Administrator, Appellee |
| Court | Iowa Supreme Court |
REHEARING DENIED MAY 10, 1921.
Appeal from Keokuk District Court.--K. E. WILLCOCKSON, Judge.
ACTION to recover damages resulting from a collision of two automobiles. Verdict of jury finding for defendant. Judgment entered, taxing costs to plaintiff. Plaintiff appeals.
Affirmed.
Stockman & Baker, for appellant.
Hamilton & Beatty, for appellee.
DE GRAFF, J.
On the evening of May 7, 1916, about 9 o'clock, a Ford car driven by plaintiff, and a Spaulding car, driven by A. F. McClune, collided on the public highway, a few miles from Thornburg. As a result of the collision, A. F. McClune, his mother, and his little boy were killed, and the plaintiff received personal injuries and damages to his car.
The road on which the accident happened is an east and west road, and at the place of the accident is about 28 feet wide, the traveled portion thereof being about 21 feet. The plaintiff was going east, accompanied by a Dr. Tinsley, who was on his way to make a professional call at the farm home of Tom White. The Ford car, at the time of the collision, according to the testimony of plaintiff, was traveling at the rate of 12 to 15 miles per hour, and the McClune car, in the judgment of plaintiff, "was going 48 to 49 miles an hour." McClune and his family had attended church at Keswick and were on their way home, traveling west at the time of the collision.
About 85 feet west of the point of collision is a culvert, over which there was a slight rise or bump, about 4 inches above the level of the road, and about 3 feet wide. This strip of road is approximately level. From the intersection of the east and west road with the road running north and south, called the "T" road, the first high point east of the intersection is 648 feet distant. In this space there is a rise of 30 feet. From the high point to the place of collision is 344 feet, and from the latter point for 441 feet east there is a rise of 16 feet. In the next 200 feet there is a descent of approximately 4 feet, and in the next 659 feet there is a rise in the grade of 32 feet.
At about the point of the collision, 10 willow trees were growing on the north side of the road. These trees were 1 1/2 feet thick at the bottom, 40 feet high, and covered a space of about 90 feet east and west. The limbs extended over the road somewhat, and interfered with passing vehicles.
On the evening in question, it had rained some, and the road in spots was slippery. The lights on each car were being used, and the respective drivers saw the other's car for a considerable space before the accident.
Pearl McClune, the widow of A. F. McClune, and only survivor of the occupants of the Spaulding car, testified that "it appeared that the cars were going to pass;" and both plaintiff and Dr. Tinsley testified to the same effect.
Plaintiff instituted this action by filing a claim for damages against the estate of A. F. McClune.
I. The errors relied upon for a reversal find their lodgment in the instructions given by the trial court. Space will not permit the incorporation into this opinion of the 23 instructions given, nor would any good purpose be served in so doing. Sufficient to state, they were of the ordinary sort in personal injury cases, couched in plain and simple English, subject to certain verbal criticism, and with more or less repetition in statement of legal principles.
It is urged by appellant that the court failed to submit to the jury certain acts of negligence on the part of the defendant. No specific acts of negligence were alleged by plaintiff in his petition, nor did the plaintiff request any instructions in this particular. The court, on its own motion, instructed the jury as to the acts of negligence to be considered, to wit: (1) That, at the time of and just prior to the collision, the deceased, A. F. McClune, was operating his automobile at an excessive and dangerous rate of speed; (2) that, in the operation of his car, he was negligent in not turning to the right, and thus failed to use ordinary care to avoid a collision.
It is the duty of the trial court, on its own motion, to instruct fully on the issues, as warranted by the pleadings and the evidence. With this thought in mind, appellant contends that the court should have also submitted: (1) That the said McClune did not have his machine under control at the time of and just prior to the collision; (2) that the said McClune was negligent in permitting his machine to cross over to the south side of the highway, across the middle line of the traveled part of the road.
We think these matters were sufficiently embodied in the instructions given. In one instruction, the court told the jury that the deceased was required to operate his automobile with the same caution, prudence, and care for the safety of those using the public highway as an ordinarily cautious and prudent man would exercise under the same or like circumstances, and that they should take into consideration, as shown by the evidence, the time and place where the car was operated, rate of speed, where it was being driven on the highway,--that is, as to the right or wrong side thereof,--and his manner of driving. In another instruction, the jury was told to consider, in connection with the speed of the defendant's car at the time of and prior to the accident, the physical condition of the road, as to mud, traveling down hill, and whether wet and slippery, and after considering these conditions and any conditions making traveling difficult and dangerous to others, determine whether the defendant was operating his car as an ordinarily prudent man, etc.
In another instruction, portions of the Motor Vehicle Law applicable to this case were quoted, viz.: (1) The driving of the car in a careful and prudent manner; (2) the rate of speed and the attending presumption; (3) the turning to the right, in passing a vehicle driven in the opposite direction.
In the light of the instructions given, and of the failure to request more specific instructions in this regard, error cannot be predicated thereon.
II. It is further contended that the court should not have submitted to the jury the question "whether plaintiff received the injuries to his person and the damage to his automobile," as the evidence on these propositions was not in dispute. If this is error, it is without prejudice. An instruction given that is unnecessary, or even uncalled for, does not constitute reversible error, unless it appears, under the record, to have misled the jury. McCaskey v. Ft. Dodge, D. M. & S. R. Co., 154 Iowa 652, 135 N.W. 6; Swisher v. Interurban R. Co., 151 Iowa 384, 130 N.W. 404.
III. Complaint is made that the instructions unduly emphasized the doctrine of contributory negligence by too frequent reference thereto. "The mere repetition of a rule cannot well be denounced as constituting error." Livingstone v Dole, 184 Iowa 1340, 167 N.W. 639. We do not approve this...
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