Rudd v. Jackson
| Decision Date | 16 February 1926 |
| Docket Number | 37267 |
| Citation | 213 N.W. 428,203 Iowa 661 |
| Parties | ZELMA RUDD, Appellee, v. OTTO JACKSON, Appellant |
| Court | Iowa Supreme Court |
OPINION ON REHEARING APRIL 5, 1927.
Appeal from Lee District Court.--JOHN E. CRAIG, Judge.
Action for damages for personal injuries, resulting from the collision of two automobiles. The defendant was the owner and driver of one, and the husband of plaintiff was the owner and driver of the other. There was a verdict and judgment for the plaintiff, and the defendant has appealed.
Reversed.
George W. Potts, Herminghausen & Herminghausen, and C. C. Putnam for appellant.
E. C Weber and J. R. Frailey, for appellee.
The accident involved occurred at about 6:15 P. M., on January 21, 1924, on Primary Road No. 20, a paved highway extending north and south between Ft. Madison and Montrose. The plaintiff was riding in a Ford touring car, with a babe in her arms. The car was traveling south. The defendant was the operator of a bus line upon such highway, and used a Cadillac car as one of his busses. He was its driver on this occasion, and was driving north. The paving on this highway consists of a strip 18 feet wide, with a wing on each side, 5 feet wide, of dirt or gravel, and suitable for travel. A day or two before the accident, a fall of snow had covered this road to a depth of from 4 to 6 inches, which covering remained thereon at the time of the accident. The travel following the snowfall resulted in one traveled track for vehicles. Both of these vehicles occupied this traveled track, as they approached each other. The collision resulted from the failure of one or each driver to yield to the other a part of this traveled track.
The testimony for the plaintiff is that this traveled track was upon the west side of the center line; whereas the testimony of the defendant is that it was upon the east side of such line. The testimony for the plaintiff was that, as her husband's car approached the meeting place, he turned to his right, and yielded half the traveled track; that such position brought him close to the ditch at his right; that the bus failed to yield any part of the traveled track, but occupied both sides thereof until it came within a few feet from the meeting point, when it suddenly veered to the right, pointing northeasterly; that it thereby avoided a head-on collision, though the body of such car was still upon the traveled track; that the front end of the Ford collided with the side of the bus at a point just to the rear of the front wheel and fender; that the forward movement of the bus thereupon carried the Ford with it, and that this resulted in turning the Ford about, so that it was headed toward the northeast (in the same direction as the bus), when it came to a stop; that the Ford was demolished on its left side, and was turned over; and that the plaintiff was injured, as a result, in that she suffered a broken limb and other injuries; that her limb was fractured slightly below the knee, and the kneecap otherwise injured. She was confined to the hospital and to her home for many weeks, and was under much disability at the time of the trial. The verdict was for $ 3,500, and judgment was rendered thereon. The number of assigned errors is very great, being 23 in number, and each of these is argued under several brief points.
It will be impossible, within the appropriate limits of an opinion, to deal in detail with each error assigned. We shall aim, therefore, to deal broadly with the general character of the complaints presented for our consideration by the appellant.
I. At the close of the evidence for the plaintiff, and again at the close of all the evidence, the defendant moved for a directed verdict, upon the ground that it appeared conclusively from the evidence that the defendant was not negligent, and also that the plaintiff was negligent. We think that the motion was properly denied in each case. The evidence in the record is full of conflict. The jury could have found that either one of them, with ordinary care, could have avoided the accident. The case, therefore, presented a jury question.
II. The defendant complains of a certain ruling by the court, which sustained plaintiff's motion to strike a part of his answer. The petition alleged the negligence of the defendant and her own freedom from contributory negligence. The defendant answered the petition with a general denial and with specific denials of every allegation therein pertaining to the subject of negligence. In addition to these specific denials, the defendant pleaded affirmative matters, including evidence and argument. The part thereof which was stricken by the ruling of the court was the following:
The defendant was in no manner hurt by such ruling. In so far as the facts pleaded were material, they were admissible in evidence under his general denial. The affirmative allegations added nothing to the general denial. They were a mere attempt at emphasis. In so far as they were argumentative, they had no proper place in the pleading. The matter here quoted was stricken from Paragraph 2 of the petition.
The matter here quoted was again included, with certain addition and elaboration, in Paragraphs 3, 4, 5, and 7 of the answer. Such matter was stricken from such paragraphs by the same ruling of the court. Manifestly, if it was proper as to one paragraph, it was proper as to all. The grievance which appellant suffered by this ruling, as urged upon us in argument, was that he was thereby deprived of his right of having such allegations stated to the jury in the statement of issues in the court's instructions. Particular complaint is made because in some of these paragraphs he had specifically charged that the Ford car was traveling without lights, and that he was entitled to have such claim stated to the jury in the statement of issues.
Broadly speaking, the defendant was not entitled to plead immaterial matter for the purpose of having it stated to the jury; nor was he entitled to have it stated to the jury, even though it had not been stricken from his pleading. As to his allegation of want of lights on the Ford car, that issue was expressly submitted to the jury. It appears that the defendant filed a counterclaim, wherein some of these stricken allegations were made. The allegations were not stricken from the counterclaim. The allegation that the Ford failed to carry lights was included in his counterclaim, and was included in the statement of issues by the court, in connection with such counterclaim. The defendant suffered no prejudice, therefore, at that point.
III. Complaint is made of an instruction which involved a construction of Section 5020, Code of 1924, which provides as follows:
"Persons on horseback,...
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Rudd v. Jackson
...error. The judgment is accordingly affirmed. Affirmed.DE GRAFF, C. J., and ALBERT and MORLING, JJ., concur. a1. Superseded by opinion, 213 N.W. 428. ...