Strand v. Grinnell Auto. Garage Co.

• Decision Date: 24 October 1907
• Citation: 113 N.W. 488,136 Iowa 68
• Parties: GABRIEL STRAND, Appellee, v. GRINNELL AUTOMOBILE GARAGE CO. ET AL., Appellants
• Court: Iowa Supreme Court

113 N.W. 488

136 Iowa 68

GABRIEL STRAND, Appellee, v. GRINNELL AUTOMOBILE GARAGE CO. ET AL., Appellants

Supreme Court of Iowa, Des Moines

October 24, 1907

Appeal from Poweshiek District Court.--HON.W. G. CLEMENTS, Judge.

ACTION at law to recover damages for injuries received by plaintiff in an accident which it is claimed was due to the negligence of the defendant, its agents and servants, in operating an automobile upon a public highway in Jasper county. Trial to a jury, verdict and judgment for plaintiff, and defendants appeal.

Affirmed.

J. H Patton and J. P. Lyman, for appellants.

Boyd & Bray, for appellee.

OPINION

DEEMER, J.

That plaintiff received personal injuries due to a runaway of his horse, caused by its being frightened by an automobile operated by defendants, is conceded, and the only questions of fact in the case, aside from the amount of plaintiff's damage, are the negligence of the defendants, and the contributory negligence, or rather the want of it, on plaintiff's part. The negligence charged in the petition is: "That the machine was run at a high rate of speed and plaintiff, a man of sixty-eight years of age, while driving on the highway of Jasper county with a single horse and top buggy was met by said automobile. That at this place the road was dangerous because of a high embankment on the right of said plaintiff. That there was plenty of room for the defendants to turn out to their right and avoid any injury to plaintiff. That on meeting the plaintiff the machine was going at a high rate of speed, and defendants failed, neglected, and refused to stop or slacken its speed, but continued to operate the machine at a dangerous rate of speed past the plaintiff's horse and buggy. That the defendants failed, neglected, and refused to turn out to the right enough to allow the plaintiff room to pass without accident. That plaintiff's horse became frightened and unmanageable, which was known to said defendants, or in the exercise of ordinary care, prudence, and discretion should have been known to defendants. That plaintiff's horse, because of its fright at the automobile, overturned the plaintiff's buggy, injuring him by breaking one rib, butting and injuring plaintiff about the head, right hip, right shoulder, and arm, and by bruising and injuring both his legs and his back." Plaintiff also pleaded freedom from contributory negligence. Defendants' answer was practically a general denial and a plea of contributory negligence on plaintiff's part. Defendants also pleaded that the automobile was not running at a greater rate of speed than provided by law, that the person in charge thereof was complying with all the provisions of the law, and that defendants did nothing save what they had a right to do. Upon these issues the case was submitted, resulting in a verdict and judgment for plaintiff. The errors assigned, some fourteen in number, relate to rulings on testimony, failure to submit certain special interrogatories, failure to give certain instructions asked, and failure to sustain defendants' motion for a new trial based on misconduct of the jury and insufficiency of the testimony to sustain the verdict. The instructions given are not complained of, and the propositions most relied upon are that the verdict is contrary to the evidence, that the jury was guilty of such misconduct as vitiates the verdict, and that the court was in error in refusing to submit the special interrogatories asked.

I. As to rulings on evidence. Plaintiff was permitted to prove, over defendants' objections, that his wife nursed him during his illness, and the value of the service of an untrained nurse. Defendants contend that this was error, for the reason that the wife was compelled by reason of her marital relations to perform these services, and that plaintiff is not entitled to recover anything therefor. There is no merit in this connection. Beringer v. Dubuque Co., 118 Iowa 135, 91 N.W. 931; Varnham v. Council Bluffs, 52 Iowa 698.

A witness introduced by defendants was asked as to the condition of the highway "300 feet east of where you saw the automobile, east of where the accident occurred." Objection to this as immaterial was sustained. In this there was no prejudicial error. The distance was too remote from the scene of the accident to render the condition of the highway at that place a material factor; and, moreover, the question itself is rather vague, for it does not specify the place with any degree of certainty. Again, the matter was fully covered by other testimony in the case.

II. Defendants submitted some special interrogatories which the trial court refused to propound; but on its own motion the court submitted four, which, as we think, fully covered the case and called for ultimate facts, rather than the evidence to sustain such facts. The interrogatories submitted were as follows: "Int. 1. Do you find that just before the injury complained of the plaintiff exercised ordinary care and prudence such as a man of ordinary care and prudence would have exercised under like or similar circumstances to protect himself from injury? Int. 2. Was the plaintiff, in view of the circumstances, careless and negligent in the way of handling and endeavoring to manage his horse? Int. 3. Did the person in charge of the automobile fail to exercise ordinary care and prudence such as a man of ordinary care and prudence would have exercised under like or similar circumstances? Int. 4. Do you find that the person in charge of the automobile exercised ordinary care and prudence such as a man of ordinary care and prudence would have exercised under like or similar circumstances?" Those submitted by defendants, in so far as they called for ultimate facts, did not differ materially from the ones given, and, in so far as they were in the nature of a cross-examination and called for evidentiary, rather than ultimate facts, they were properly refused. Butterfield v. Kirtley, 115 Iowa 207, 88 N.W. 371; Morbey v. Railroad, 116 Iowa 84.

III. Regarding the instructions asked by defendants and refused, the trial court gave the law substantially as announced in defendants' first, second, and sixth requests, and in so doing committed no error, although it did not use the exact language of the requests. Farrell v. Dubuque, 129 Iowa 447. The fifteenth request reads as follows:

The person in charge of the automobile had a right to expect, when approaching the plaintiff's horse and buggy, that plaintiff would make such effort as a man of ordinary intelligence and prudence would make to manage and control his horse, and that, if plaintiff feared that his horse would be frightened, he would by raising his hand, or in some other way, indicate his desire to have the automobile come to a stop, and if plaintiff did not use such care in the management of his horse as a man of ordinary intelligence and prudence would have used, and if he did not in any way indicate a desire that the automobile should stop, then the plaintiff is not entitled to recover, and your verdict should be for defendants.

This does not announce the law and was properly refused. Even though plaintiff made no signal to the driver of the automobile to stop, this did not relieve him (the driver) from the duty of ordinary care to avoid an accident. If the driver saw that plaintiff's horse was frightened, he was required to exercise ordinary care to prevent an accident, although he received no signal from the driver and owner of the horse to stop his machine. Nor is the driver of a horse required under all circumstances to give a signal to stop in order to free himself from the charge of contributory negligence. Christy v. Elliott, 216 Ill. 31 (74 N.E. 1035, 1 L. R. A. (N. S.) 215, 108 Am. St. Rep. 196), and cases cited. In lieu of the instruction asked, the trial court gave the following:

In reference to the defendant stopping the automobile, you are instructed that the law regulating the use and operation of automobiles upon the highways provides that any person operating a motor vehicle shall, at the request or on the signal by putting up the hand from a person riding or driving a restive horse or other draft or domestic animals, bring such motor vehicle immediately to a stop, and if driving in the opposite direction, remain stationary so long as may be reasonable to allow such horse or animals to pass. And the operator and occupants of any such motor vehicle shall render necessary assistance to the party in charge of such horse or other draft animal in so passing. There is no claim that plaintiff signaled for the automobile to stop by raising his right hand, or that he requested the same to be stopped. And if you find that it was not apparent to the operator of the automobile as an ordinary cautious and prudent man that the plaintiff's horse was frightened, or by the exercise of ordinary care could not have seen or known that the plaintiff's horse was frightened and likely to become unmanageable, then, under such circumstances, the operator of the automobile would be warranted in proceeding with due caution. And if he did so proceed with due caution, and an accident resulted, under such circumstances, then the defendants would not be...