Pekarek v. Myers

• Decision Date: 18 March 1913
• Citation: 140 N.W. 409,159 Iowa 206
• Parties: ED. PEKAREK, Plaintiff and Appellee, v. O. F. MEYERS, Defendant and Appellant
• Court: Iowa Supreme Court

140 N.W. 409

159 Iowa 206

ED. PEKAREK, Plaintiff and Appellee, v. O. F. MEYERS, Defendant and Appellant

Supreme Court of Iowa, Des Moines

March 18, 1913

Appeal from Franklin District Court.--HON. C. G. LEE, Judge.

ACTION to recover damages for personal injury.

Affirmed.

Jno. M Hemingway, for appellant.

F. J McGreevy, for appellee.

GAYNOR J. EVANS, J., takes no part.

OPINION

GAYNOR, J.

This is an action to recover damages for personal injury and injury to property, which the plaintiff claims to have sustained, occasioned by being thrown from a wagon in which he was riding, basing his right to recover on what he claims to be the negligence of the defendant in attempting to pass him on the public highway in an automobile. He says in his petition that on the 7th day of May, 1911, he was driving a team hitched to a wagon occupied by himself and others; that the defendant was driving an automobile on the same highway; that the plaintiff had just driven his team onto a part of the public highway where the same is graded, and is high and narrow; that, while he was so driving, the defendant approached him from the opposite direction; that the occupants of plaintiff's wagon signaled to the defendant to stop by raising their hands, and did this before the defendant came onto said grade, and while he was on a part of the highway which could be used to its full width; that the defendant, carelessly and negligently, disregarded the signals and drove his automobile onto said grade, part of the way, close to plaintiff's team, and the team became frightened; that thereupon the defendant was requested to render assistance and to lead the team; that the defendant dismounted from the automobile and carelessly and negligently seized the bridle of one of the horses in an angry manner, and led the same a short distance, and then negligently and wrongfully struck the horse, and thereby frightened the team and caused the same to run away and upset the wagon in which plaintiff was riding, throwing the occupants and contents of the wagon to the ground, and severely injuring the plaintiff and destroying his property. Defendant, for answer, admits the meeting, but alleges that at the request of the plaintiff he turned his automobile from the road and stopped the same and shut off the power and came to the plaintiff's assistance, but denies that he was negligent in assisting the plaintiff to pass the automobile; denies that he struck the team or did anything to frighten the horse; claims that he conducted the horses for several rods past the automobile, and only let go of them when they were apparently proceeding in a safe and steady manner, and that the running of the team thereafter and the injury to the plaintiff was without any fault or negligence on his part.

At the conclusion of the testimony, the court withdrew from the consideration of the jury all charges of negligence, except that embodied in the claim, that the defendant was negligent in the manner in which he attempted to assist the plaintiff to pass, saying: "The only question of negligence that will be submitted to the jury is the question whether or not defendant was negligent in what he did in the way of assisting the plaintiff to pass the automobile. If he failed to use ordinary care in what he then did, he was guilty of negligence, and that is a question for the jury. I am satisfied, under the record in this case, that there can be no recovery for alleged failure to stop the automobile where the automobile was stopped. The team was under control at the time he undertook to pass, and the evidence of previous acts would not be the proximate cause of the injury that resulted." The issue as to whether or not the defendant was negligent in what he did, in the way of assisting the plaintiff to pass the automobile, was submitted to the jury under proper instructions, and the jury returned a verdict for the plaintiff, and from this verdict the defendant appeals, assigning as grounds for reversal the following alleged errors on the part of the court: (1) That the court erred in not sustaining defendant's motion for an instruction to the jury to return a verdict for the defendant, in that the evidence failed to show any negligence on the part of the defendant. (2) That the court erred in overruling defendant's motion for a new trial, based on the ground that the verdict of the jury was not sustained by the evidence, for the reason that the evidence did...