Sutton v. Moreland
| Decision Date | 05 April 1932 |
| Docket Number | No. 41084.,41084. |
| Citation | 242 N.W. 75,214 Iowa 337 |
| Parties | SUTTON v. MORELAND. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Jones County; F. O. Ellison, Judge.
Action for personal injury resulting from an automobile accident. From a judgment entered on the verdict of the jury for damages in the sum of $800, the defendant appeals.
Affirmed.
Clifford B. Paul, of Anamosa, for appellant.
James E. Remley, of Anamosa, for appellee.
The injured party in this action claiming damages was Frank S. Sutton, who was a minor at the time of the accident. The action was instituted by his father as his next friend, but, before the case was disposed of, the son became of age, and was substituted as the real plaintiff, and we will refer to him as plaintiff in this opinion.
State primary road No. 117 is a paved highway running east and west, and passing through the towns of Wyoming and Anamosa, the latter being the westerly of the two. At a point on this road, about 5 or 6 miles west of Wyoming, another primary road, known as No. 38, runs south through the town of Olin in the same county. The north end of No. 38, however, is at the point where it reaches primary road No. 117. No. 38 is a graveled road, and about three or four hundred feet south of the pavement on No. 117, No. 38 forks, one fork running northeast and the other northwest to make the connection with primary No. 117. The distance on primary between the point where these forks connect with 117 is about 350 feet.
On August 6, 1930, the town of Wyoming was celebrating a “Diamond Jubilee,” and about 10 o'clock of that night the plaintiff and four others were riding in a Ford touring car to Wyoming to attend such celebration. The car was owned and driven by one Albert Wink, and plaintiff was riding on the right side of the back seat. They were traveling east on No. 117 when their car collided with a car owned and driven by the defendant, C. G. Moreland. The collision occurred near the point where the east fork of No. 38 joins with primary No. 117. The defendant, Moreland, was coming from the east on the north side of the road on his way to his home at Olin, some miles south of No. 117. In changing his direction, he crossed the path of the car in which the plaintiff was riding, which was then traveling in an easterly direction on the south side of the road, and the car in which plaintiff was riding struck Moreland's car.
There is the usual dispute in the testimony as to whether the defendant gave a signal, or, under the law, was bound to give a signal of his change of direction, and whether there was negligence on the part of Moreland which was the proximate cause of the injury, and other incidental questions growing out of such a situation. These were all questions for the jury, and, in so far as the contentions of the appellant are concerned, are not here for review.
[1] I. The first complaint urged on the part of the appellant is that his (defendant's) theory of the case was that, when he reached the point in controversy, he believed, as a reasonably prudent man, that, while he saw the car in which plaintiff was riding, he had sufficient time to cross in front of it and avoid the collision.
Of course, every intelligent lawyer in a case has a theory of his case, and the theory thus entertained by him, if it is made known to the court, should warrant the court in instructing on that theory, if the theory is legally correct. Passing the question as to whether or not appellant's theory was correct--and assuming it was--if he desired such theory to be submitted by the court in the instructions, he should have requested the court so to do, but, not having called his theory to the court's attention by a requested instruction, he is not in a position to complain because no such instruction was given. Under the issues as made by the pleadings, so far as this question is concerned, the court covered the issues thus made, and that was all that was required of him, in the absence of a request by the plaintiff for further instructions.
[2] II. The next question urged on our attention is instruction No. 12, which reads as follows: “If you find from the evidence that at the time and place of the accident, the plaintiff was riding in what is called the ‘Wink car’ as an invited guest of the owner and driver of said car, and that he, the plaintiff, neither had not assumed any right to direct or control the driver of said car, and did not in any manner control the management, operation or course of said car or its driver, then although you may believe that the driver of the Wink car was guilty of contributory negligence at the time of the accident, his negligence can not be imputed to the plaintiff.”
The complaint lodged against this instruction is that there was no evidence in the case showing that the plaintiff was the “invited guest” of the owner and driver of the car. We do not think the defendant is in a position to complain as to this instruction. The purpose of the same was to protect the defendant from liability on account of the negligence of the driver of the car; in other words, it told the jury that the negligence of the driver of the car could not be imputed to the plaintiff. We do not think prejudicial error occurred from the giving of this instruction.
[3][4] III. Complaint is also lodged against instructions Nos. 5 and 6. These instructions deal with the question of which car had the right of way at this intersection, and the only complaint against them is that they told the jury that a failure to observe the law as to the right of way at this intersection was negligence, and no such ground of negligence was pleaded by the plaintiff.
We turn, therefore, to the plaintiff's petition, as amended, and find, among other allegations, the following: “That at said time and place, defendant, in a careless, reckless and negligent manner, suddenly drove his car across the left side of the road going west on primary road 38, directly in front of...
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...A pleader is entitled to claim as many grounds of actionable negligence as flow from his pleaded statement of facts. Sutton v. Moreland, 214 Iowa 337, 242 N.W. 75. An examination of the amendment discloses that it does not state a new or different cause of action from that alleged in the pe......
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...his pleaded statement of facts. Rosin v. Northwestern States P. Cem. Co., 252 Iowa 564, 568, 107 N.W.2d 559, 561; Sutton v. Moreland, 214 Iowa 337, 342, 242 N.W. 75, 78. And the party is entitled to have the court instruct the jury accordingly, subject only to the condition legally sufficie......