Remington v. Machamer
| Decision Date | 10 January 1922 |
| Docket Number | 33894 |
| Parties | OSCAR REMINGTON, Administrator, Appellee, v. LOUIS MACHAMER, Appellant |
| Court | Iowa Supreme Court |
Appeal from Linn District Court.--MILO P. SMITH, Judge.
ACTION by plaintiff, as administrator, to recover damages caused by injury to and death of his daughter, Velma, while she was attempting to cross the roadway of a bridge over Cedar River at B Avenue, in Cedar Rapids, Iowa, and was struck by defendant's automobile. The accident happened between 4 and 5 o'clock in the afternoon of September 16, 1916. Deceased was about 14 years of age. She died from her injuries September 19th. Deceased was attempting to cross at a point which was not an intersection or place provided for crossing by pedestrians. There was a trial to a jury, and a verdict and judgment for plaintiff for $ 1,000. Defendant appeals.
Affirmed.
Redmond & Stewart and Charles Penningroth, for appellant.
Grimm Wheeler & Elliott and Floyd Philbrick, for appellee.
The petition states that deceased died September 19th, and that, before her death, she was subjected to expense for medical care, attention, etc.; that, by reason of the injuries and death, her estate had been damaged; and that the claim is the property of plaintiff, as administrator. The negligence charged is that defendant was driving his car at an excessive and reckless rate of speed; that he did not have it under proper control; that he was negligent in not seeing and avoiding deceased, in failing to stop or turn said car aside after he saw, or should have seen, deceased, in failing to sound his horn or give any signal or warning of his approach, and in violating the ordinances of the city regulating the speed of such vehicles.
Deceased was proceeding west on the south side of the bridge, and when about a third of the way from the east end, attempted to cross the roadway from the south side of the bridge. Defendant was proceeding east, on the south or right-hand side of the bridge. Plaintiff's evidence tends to show that, before defendant struck the girl, and as he was approaching her, he was looking down the river, south and east of the bridge, where some men were making excavations for a power house; that he was traveling at from 20 to 25 miles an hour when he struck her; that it was while she was leaving the south sidewalk and was starting across the roadway that appellant was looking down stream, instead of in front of his car; that, after the accident, defendant stated to plaintiff that he did not know the little girl was there until he felt the jar of the car; that, when she was struck, she was from 8 to 12 feet from the curbing on the south side of the bridge; that she was struck by the radiator and the right front fender; that there was sufficient space between deceased and the south curb for appellant to have passed behind her without striking her; that, when she was struck, her clothes caught on the car, and she was dragged until the car stopped, when she was found lying on the pavement beneath the right hind wheel of the car, the wheel resting on her leg or on her dress; that she was dragged and rolled from the front to the rear of the car before it stopped; that the car went from 20 to 30 feet after it struck her, before it stopped. A witness who helped pick her up, and went with her to the doctor's office, found a few spots of blood on his hand, after he took her to the doctor's office. Another witness saw some blood on her right thigh, as she lay on the pavement. Witnesses for plaintiff noticed skid marks on the smooth creosote blocks of the bridge paving, where the wheels had skidded after the brakes were set. Another witness found a comb, a button, and a piece of cloth, and saw some blood along the skid marks, and located these articles with reference to the beginning and ending of the skid marks, and with reference to the railing posts of the bridge.
The doctor who attended her testified that she died of peritonitis, caused by a ruptured bowel, the rupture being caused by extreme violence; and that the steels of her corset were bent at an angle of nearly 90 degrees.
The ordinances of the city prohibited the operation of a motor vehicle at a speed in excess of 15 miles per hour. Those near did not hear defendant give any warning signal. Deceased was strong and healthy. One witness testifies that she was carrying a small paper sack in her hand; another witness did not notice this, but says that the dashboard or runway of the car was scattered with salted peanuts. "Don't know whether she had them; don't know where they came from." A witness states that deceased was facing northwest at about the time she was struck.
Defendant's evidence tends to show that the bridge was crowned, the highest point being at about the center of the bridge. It was also crowned laterally. The sidewalk on the bridge was eight feet wide, elevated some eight inches above the roadway. The creosote blocks were filled or covered with asphalt. There was nothing along the curb on either side of the bridge to interfere with one's vision. Defendant was accustomed to driving automobiles. He says it was his impression that he was going at about 10 or 12 miles an hour; that he didn't see deceased until she was right in front of his machine--immediately in front of him--was right on her; that he applied the brakes as soon as he saw her--got the brakes fully set before she was struck; that he stopped and got out of the car; that he swayed to the left to avoid her. He says he stopped the car, after he struck her, within the length of his Ford car; that he gave her assistance after the accident. He thinks he was about three or four feet from the south curb; was looking straight ahead, as he was driving.
There was more or less corroboration for both plaintiff's witnesses and those testifying for the defendant, and there is denial of some of plaintiff's evidence. We have set out enough to give a general outline. It will be noticed that there is a conflict in the evidence at some points.
1. Instructions Nos. 4, 7, and 8 are now complained of. No exceptions were taken to any of the instructions at the time. Thereafter, and in the motion for new trial, exception was taken to Instruction No. 5, which had reference to contributory negligence, as did also Instructions Nos. 6 and 7. Instruction No. 5 is quite similar to the one requested by plaintiff on the subject, except that there is some elaboration in the one given. No complaint is now made as to Instruction No. 5. No. 6 has reference more particularly to the duty of one attempting to cross a street at a place other than the regular crossing. No. 7 also refers to that subject. No complaint is made of this. The complaint of No. 7 is that it unduly emphasizes the question of the age of deceased, as bearing on contributory negligence. The reference to her age in No. 7 is very brief; and if we were called upon to pass upon the question, we would be inclined to hold that there was no error. But the exception was to Instruction No. 5, of which no complaint is now made in argument, and no error is assigned as to that. The argument and assignment of error are now directed to No. 7, to which no exception was taken. Appellant is not entitled to a review of that question. Instruction No. 4 has reference to the rate of speed under the city ordinance introduced in evidence. There was no exception to No. 4.
2. Appellant attempted to except to Instruction No. 8, in the motion for new trial. The exception in the motion for new trial is as follows:
"The court erred in giving Instruction No. 8 on the measure of damages."
Appellee contends that the exception is not sufficiently specific, and is, therefore, no exception at all. The point is well taken. The statute in force at the time of the trial of this case, Code Section 3709, Chapter 11, Acts of the Thirty-eighth General Assembly, provides that the exceptions shall specify the part of the charge or instruction objected to, and the ground of the objection. No. 8 is upon the subject of the measure of damages.
Appellant, in this court, objects to the instruction on different grounds. None of these grounds, and in fact no ground at all, was stated in the exception. Moreover, Instruction No. 8 is the same as defendant's offered Instruction No. 3, except that, at the end of No. 8, the court refers to the question of funeral expenses, medical attendance, and nursing. We do not understand appellant to complain as to these last named items, except as to funeral expenses, which will be referred to later in the opinion. As to all the rest of Instruction No. 8, defendant, because of the offered instruction, in the same language as that given by the court, may not now complain. Grosjean v. Chicago, M. & St. P. R. Co., 146 Iowa 17, 23, 123 N.W. 162. Having invited the error, if any there was, defendant may not now take advantage of it. Campbell v. Ormsby, 65 Iowa 518, 520, 22 N.W. 656; Andrews v. Chicago, M. & St. P. R. Co., 86 Iowa 677, 686, 53 N.W. 399; Krehbiel v. Henkle, 178 Iowa 770, 781, 160 N.W. 211; Anderson v. Anderson, 150 Iowa 665, 671, 130 N.W. 716.
3. Appellant complains that by Instruction No. 8, the court did not limit the recovery to damages accruing to the estate after the minor would have attained her majority. They cite only Walters v. Chicago, R. I. & P. R Co., 36 Iowa 458, and Lawrence v. Birney, 40 Iowa 377. These cases refer to personal earnings of the minor during minority, which belong to the parent. No claim was made for such damages in this case, and there was no evidence thereof; so that the question is not in the case, unless, perhaps, as it may be...
To continue reading
Request your trial