Phelan v. Foutz
| Decision Date | 25 June 1925 |
| Docket Number | 36490 |
| Parties | J. C. PHELAN, Appellee, v. L. W. FOUTZ, Appellant |
| Court | Iowa Supreme Court |
Appeal from Cedar Rapids Superior Court.--THOMAS B. POWELL, Judge.
ACTION for damages growing out of an automobile accident. From a judgment in favor of the plaintiff, the defendant appeals.
Reversed.
George C. Gorman, for appellant.
Maurice P. Cahill, for appellee.
The accident out of which this action grew, occurred on the fourth day of January, 1923, at the intersection of Ninth Street and Eighth Avenue West, in the city of Cedar Rapids. Plaintiff's car was being driven by his son on Ninth Street in a northerly direction; defendant was driving his car west on Eighth Avenue. The collision occurred at the intersection of said streets, resulting in damage to both cars. Plaintiff sued defendant, and alleged in his petition, as the ground of negligence, that the defendant was driving his car at a dangerous and excessive rate of speed, in excess of the lawful rate fixed by the ordinances of the city of Cedar Rapids, and at a rate dangerous to other persons in the lawful use of the streets of said city. This is the sole ground of negligence on which he bottoms his action in his petition as amended.
The defendant denies, and counterclaims. In his counterclaim against the plaintiff he alleges several grounds of negligence on the part of the plaintiff. The defendant's evidence, to some extent, tends to support some of the various grounds set out by him in his counterclaim.
Plaintiff requested the court to give to the jury seven instructions, which he submitted in writing, which request was refused. Each and all of the instructions given by the court were duly excepted to.
As heretofore noted, the plaintiff bottoms his action on one ground of negligence only. Defendant complains about the instructions given by the court, in that they nowhere limit the plaintiff's recovery to the ground of negligence on which he bottoms his action. A review of the instructions leads us to the conclusion that the complaint of the defendant in this respect is justifiable. In Instruction II the court defines negligence to be "a failure to do that which a person of ordinary prudence and intelligence would do under the same or similar circumstances, or the doing of that which a person of ordinary prudence and intelligence would not do under the same or similar circumstances."
With this instruction as a basis, the court, in several instructions, in substance told the jury that, if they found the defendant to be guilty of negligence, and the plaintiff free from contributory negligence, then plaintiff was entitled to recover. Nowhere in the instructions does the court specifically call the attention of the jury to the sole ground of negligence claimed by the plaintiff; but, under the foregoing definition of negligence, they are permitted to find for the plaintiff as against the defendant on any ground of negligence they might discover in the evidence, thus giving to the plaintiff an advantage to which he is not entitled. The law is well settled that, when the plaintiff, in a pleading, chooses the ground upon which he bottoms his action, he must stand or fall on the ground thus chosen by him. The court had no right to permit the jury to consider any other ground of negligence than that set out by the plaintiff in his petition, the plaintiff herein having elected the grounds of negligence on which he bottomed his action. The court should have specifically called the jury's attention to this particular ground claimed by the plaintiff, and should have told them, in so many words, that the plaintiff must recover, if at all, on that ground, and should not have allowed the jury to speculate in the general wide field of negligence. Manuel v. C., R. I. & P. R. Co., 56 Iowa 655, 10 N.W. 237; Munger v. City of Waterloo, 83 Iowa 559, 49 N.W. 1028; Edwards v. City of Cedar Rapids, 138 Iowa 421, 116 N.W. 323; Lang v. Marshalltown L., P. & R. Co., 166 Iowa 548, 147 N.W. 917.
Among others, the court gave the following instruction:
"You are instructed that, if you find by a preponderance of the evidence that the defendant was negligent in the operation of his automobile as he approached the intersection of Eighth Avenue and Ninth Street West, and that the driver of the plaintiff's car was also negligent as he approached said intersection, but that the defendant, after the occurrence of the negligence of the driver of the plaintiff's car, could, by the exercise of reasonable care, have avoided the collision, then the defendant is liable to the plaintiff, and your verdict should be for the plaintiff."
This instruction is attacked on two grounds: First, that it is wholly irrelevant to any of the issues herein; second, that it is a futile attempt to instruct on the doctrine of the last clear chance, and that, if it is to be so considered as...
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