Siesseger v. Puth
| Decision Date | 09 May 1933 |
| Docket Number | No. 41680.,41680. |
| Citation | 248 N.W. 352,216 Iowa 916 |
| Parties | SIESSEGER v. PUTH. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Cerro Gordo County; M. H. Kepler, Judge.
This is an action for personal injuries alleged to have been received by the plaintiff through the recklessness in the operation of an automobile by defendant. Judgment in favor of plaintiff for $5,000. Defendant appeals.
Affirmed.
See, also, 213 Iowa, 164, 239 N. W. 46.H. B. White, of Des Moines, and Breese & Cornwell, of Mason City, for appellant.
Senneff, Bliss, Witwer & Senneff and Smith & Feeney, all of Mason City, for appellee.
On August 5, 1928, the plaintiff, seven years of age, was riding as a guest, in an automobile owned and operated by his uncle, J. C. Puth, the defendant. Defendant and his wife were on the front seat with plaintiff sitting on Mrs. Puth's lap. Plaintiff's mother and sister and Helen Hissop were in the rear seat. They were driving to Decorah to visit relatives, and at the time of the accident were traveling on highway No. 9 about 3 miles east of Osage. Highway No. 9 was as good as any gravel road in the state and was dragged daily. The road was in good condition, with no ruts in it, except such small depressions as are generally found in gravel roads. It was about 30 to 32 feet wide, with a down grade for about a quarter or half mile from the place where the car went into the ditch. Defendant said he was going about 55 miles an hour.
The defendant was 46 years of age and owned the car he was driving about two and a half months and had driven only about 2,400 miles.
As the car was traveling along the highway, it was weaving from one side of the road to the other and went faster and faster about 1/2 mile before it went into the ditch.
Plaintiff said that his “uncle Joe went to step on the brake but by mistake stepped on the starter and went into the ditch.” Defendant said that after they were going down the hill he lost control and went to put his foot on the brake and instead put his foot on the gas and hit a little depression and he put the gas on a little harder.
Defendant admitted he was probably driving too fast; that the car started to weave and he stepped on the gas instead of the brake. Then the speed increased and he went into the ditch. Defendant told one of the witnesses the road looked good and he opened her up. It left the road on the wrong side. Another witness said “the car seemed to go faster and went from one side of the road to the other.””
[1][2][3][4] I. Defendant contends that instruction No. 2 told the jury that defendant's answer admitted that his “automobile upset on the public highway as alleged by plaintiff”; and claims that this was not a correct statement of defendant's admission; that by the words “that said automobile upset on the public highway as alleged by plaintiff” the court charged the jury that the defendant admitted the allegations of recklessness.
Plaintiff claims that, when this instruction is read in the light of the other instructions, the jury could not have been misled; and that this part of instruction No. 2 simply referred to the manner in which and the place where the automobile upset, and did not relate to the cause of the accident.
It is the settled law of this state that instructions must be construed in light of all the instructions given. The entire instruction No. 2 must also be analysed in construing the same.
All instructions must be read together, and when so read if the issues are fairly stated, there is no prejudicial error. Blakesburg Savings Bank v. Blake, 207 Iowa, 843, 223 N. W. 895;Cox v. Fleisher Const. Co., 208 Iowa, 458, 223 N. W. 521;Friesner Fruit Co. v. C. G. W. R. Co., 199 Iowa, 1143, 201 N. W. 112; Code, § 11228 and section 11548.
Defendant's answer admitted “that the said automobile upset on the public highway about three miles east of Osage, and as a result thereof, the plaintiff received injuries, his face being cut down his left cheek and on his lower lip and neck.” The petition does allege that “the automobile, through the negligence and recklessness of the defendant, was upset and this plaintiff received severe and permanent injuries.” If the statement of such admission was all there was in the instruction, and if there were no other instructions, advising the jury that the defendant denied that the injuries were caused by the recklessness of the defendant, there might be some ground for the complaint made to instruction No. 2.
Instruction No. 1 sets out the issues, and therein the court stated that plaintiff claims that, while riding as a guest in defendant's car about 3 miles east of Osage, the automobile, through defendant's recklessness, was upset and plaintiff was severely injured.
In instruction No. 2 the court says:
Defendant denies that said injuries were caused by, or were the proximate result of negligence or recklessness on the part of the defendant in driving said automobile or otherwise, and denies that said automobile at the time and place in question was driven at an excessive rate of speed. The defendant further denies that he did not have the car under control and denies that he acted recklessly and negligently in the premises, but states that the accident in question was caused without fault or negligence on his part. Defendant denies each and every other allegation contained in plaintiff's petition and asks that the petition be dismissed.”
The answer admits “that the automobile upset on the public highway about three miles east of Osage.””
The statements complained of in instruction No. 2 were immediately followed with the statement, in the same instruction, that “the defendant denies that said injuries were caused by, or were the proximate result of negligence or recklessness on the part of the defendant” and was given in the same breath with the statement that the defendant admitted the “automobile upset on the public highway as alleged.” The entire instruction clearly indicates that the court did not intend to charge the jury that the defendant admitted any charge of negligence. The jury could not have been misled thereby. We believe the objection to this instruction is hypercritical and the instruction was without prejudice to the defendant.
In instruction No. 3 the court expressly told the jury: “Before the defendant can recover in this action, he must prove, by a preponderance of the evidence, that at the time of the accident, (1) the defendant was driving or operating said car in a reckless manner as charged by plaintiff and as set out in paragraph one hereof; (2) that such recklessness, if proven, solely, directly and proximately caused the accident and claimed injuries to plaintiff, (3) that plaintiff sustained damages thereby and (4) the amount of damages so sustained.””
With these instructions following each other so closely, we do not believe the jury could have been misled, or could have misunderstood that it was their duty to find from a fair preponderance of the evidence that injury and damage to the plaintiff were caused by recklessness of the defendant in driving his car before they could find for plaintiff. We see no error in the instruction.
[5][6][7] II. It is also claimed that the court erred in giving that part of instruction No. 3, which charged the jury that in order to recover the plaintiff must prove that the defendant was operating the car in a reckless manner, “ as charged by the plaintiff and set out in paragraph one hereof.” (Italics ours.) The objection to this instruction is that defendant claims it tells the jury that if they find any of the specifications of recklessness, as set out in plaintiff's petition, to be true then the defendant was guilty of reckless operation of his automobile.
It is the settled law of this state that the only grounds of recklessness chargeable to a defendant are those set out in the petition; and the jury is limited in their findings on the question of recklessness to the grounds therein set out. Instruction No. 3 does not tell the jury (1) that it was reckless to drive the car at an excessive rate of speed, or (2) that it was reckless of the defendant while driving his automobile not to have the same under control while going down grade, or (3) that it was reckless for the defendant when the automobile started to swerve on the grade, for the defendant to put his foot on the accelerator instead of on the brake. As to whether or not any of these matters constitute “recklessness” are inferences to be drawn from the evidence relating thereto. These were simply allegations of recklessness alleged in plaintiff's petition, and the court expressly charged the jury in instruction No. 3 that the plaintiff must prove, by a preponderance of the evidence, that at the time of the accident the defendant was guilty of recklessness in driving his car in the manner charged in the petition. Whether or not these acts or any of them under the circumstances, under which the car was driven, did or did not constitute recklessness was necessarily a question for the jury and they were so instructed.”
In instruction No. 4 in defining the term “reckless” the court says: ”
In instruction No. 10 the court charged the jury: ...
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