Scott v. O'Leary
| Citation | 138 N.W. 512,157 Iowa 222 |
| Parties | BLANCHE SCOTT, Administratrix, Appellee, v. J. O'LEARY, Appellant |
| Decision Date | 16 November 1912 |
| Court | Iowa Supreme Court |
Appeal from Johnson District Court.--HON. R. P. HOWELL, Judge.
ACTION to recover damages for injuries sustained by plaintiff's intestate, and damages done to his property as a result of an automobile collision. Defendant filed a general denial, and upon the issues joined the cause was tried to a jury resulting in a verdict for the plaintiff in the sum of $ 550 upon which judgment was rendered, and defendant appeals.
Affirmed.
Wade Dutcher & Davis, for appellant.
Edwin B. Wilson and Ranck & Bradley, for appellee.
This action was brought by Clyde Scott, a minor, during his lifetime, in the name of George Scott, his next friend. During its pendency, but before trial, Clyde Scott died, and plaintiff, Blanche Scott, the administratrix of his estate, was substituted as plaintiff. It is not claimed that Clyde Scott died as a result of his injuries; but it is averred that he suffered personal injuries, was at expense for medical treatment, that he lost time, and that his horse was killed and his buggy and harness injured. In speaking of the plaintiff, we shall, unless otherwise stated, refer to Clyde Scott.
It is averred in the petition that plaintiff, while driving a single horse hitched to a top buggy, along a public highway in Johnson county, Iowa known as the lower Muscatine road, traveling in a southeasterly direction, met the defendant, who was coming from an opposite direction in a large high-powered automobile at an excessive, unlawful and unreasonable rate of speed, with the lights of his car in an imperfect condition, and that he (defendant) recklessly and carelessly and without looking to see if there was any one in the road, and without using any care or caution, drove his automobile directly into plaintiff's horse and vehicle, killing the horse, injuring the buggy and harness, and throwing him (plaintiff) to the ground, seriously injuring him. He further pleaded that defendant did not turn out or give him any part of the highway, and that he might have avoided plaintiff had he been so minded; but on account of not paying attention to where he was going, the defective condition of his lights, and the high rate of speed, the collision occurred. Plaintiff introduced testimony in support of all of these issues, and it is not seriously contended that the verdict is without support. The points relied upon for reversal have reference to rulings made on the admission and rejection of testimony, to the instructions given, and to the proposition that deceased was, as a matter of law, guilty of contributory negligence.
I. Without setting forth the testimony, it is sufficient to say that the question of contributory negligence was for a jury. For defendant it is contended that deceased was asleep at the time of the collision, but the jury in answer to a special interrogatory found this was not true, and, as this finding has support in the testimony, we should not interfere.
II. A witness for the plaintiff, who went to the scene of the collision, and who assisted in pulling the automobile off the horse, was permitted to testify, over objections that he was incompetent, and that the inquiry called for an opinion and not a fact, that the machine was in gear, and that the brakes were not set. Surely these statements were of facts, and no expert knowledge was required to determine the matter.
III. The following extract from the record presents the next ruling complained of: The witness giving this testimony was not an expert; but we think his testimony was not an expert; but we think his testimony was competent, for he really described nothing more than he saw. That such testimony is competent, see Reininghaus v. Association, 116 Iowa 364, 89 N.W. 1113; Stone v. Moore, 83 Iowa 186, 49 N.W. 76; Kostelecky v. Scherhart, 99 Iowa 120, 68 N.W. 591; Bailey v. Centerville, 108 Iowa 20, 78 N.W. 831; State v. Shelton, 64 Iowa 333, 20 N.W. 459.
Testimony regarding buggy and automobile tracks near the scene of the accident, was objected to as calling for the conclusion of the witness. Manifestly these objections are untenable.
A witness was asked if he knew of the habits of the deceased as to his sleeping while driving upon the public highway, and another as to certain statements made by Clyde Scott during his lifetime, in which he stated that he was in the habit of going to sleep while driving on the highway. All this testimony was excluded, and of this complaint is made. In this connection it should be stated that defendant claimed Scott was asleep at the time of the collision. Where there are no eyewitnesses of a transaction, it has been held that testimony as to the habits of one whose conduct is in question, may be shown as bearing upon his care or the want of it. Frederickson v. Railroad Co., 156 Iowa 26, 135 N.W. 12. See, also, Dalton v. Railroad Co., 114 Iowa 257 at 259; Gray v. Railroad Co., 143 Iowa 268; Hall v. Rankin, 87 Iowa 261, 54 N.W. 217; Stone v. Hawkeye Ins. Co., 68 Iowa 737, 28 N.W. 47. But the testimony must relate to his general habits and not to particular instances. The general rule in civil cases is that good character, or the reverse, can not be shown in negligence cases. Wigmore on Evidence, sections 64, 65, and cases cited.
In the instant case there were eye witnesses of the transaction, and defendant was permitted to introduce certain admissions said to have been made by plaintiff's intestate regarding the transaction. Under the rules previously announced by us, there was no error in the rulings, and in any event no prejudice. Answers to the questions necessarily would have involved Scott's conduct with reference to another horse and vehicle, and in one instance, at a time a year or more prior to the accident. The testimony, even if admissible, was so inconsequential in character that we would not be justified in reversing the case. Under the testimony, the jury might very well have found for plaintiff, although he was asleep at the time of the collision.
Mrs Kate Scott, Clyde's mother, was called as a witness and permitted to testify, over objection, that deceased was her son, and that she had given him his time and permitted him to work for himself; that he collected his own wages, attended to his own business affairs, and owned property in his own name. The only specific objection was that the question eliciting...
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