Wine v. Jones
| Decision Date | 24 June 1918 |
| Docket Number | No. 31216.,31216. |
| Parties | WINE v. JONES. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Story County; E. M. McCall, Judge.
Supplemental Opinion. Opinion modified and motion overruled.
For former opinion, see 162 N. W. 196.C. G. Lee and I. R. Meltzer, both of Ames, for appellant.
R. E. Nichol and John Y. Luke, both of Ames, for appellee.
A written stipulation of the parties that the objections to the instructions were submitted to the court prior to the reading of the instructions to the jury was filed with the clerk of court, but in some way escaped the attention of the writer of opinion. Owing to this, all that portion of the opinion commencing with the sentence, “Other errors assigned to instructions given and those requested and refused” to the end thereof is withdrawn, and the following is substituted instead:
[1][2] II. Exception is taken to the charge as a whole, for that, though it attempted to apply the law to the facts as contended by plaintiff, it failed to “apply the law as contended by defendant, notwithstanding the court was requested by the defendant repeatedly to make such applications, as shown by the record and the instructions asked by the defendant and the exceptions taken by defendant to the court's instructions.” It will be noted that no particular “omission in applying the law as contended by defendant” is alluded to. We are referred to the record, the seven instructions requested and refused and the objections to the instructions generally to find out as best we can. Manifestly the error relied on for reversal is not stated as required by rule 53 (128 N. W. xi) of this court. Nor is there anything in the proposition or authorities in support thereof indicating the ruling complained of or where it is to be found. The argument following discusses six of the seven instructions requested and refused together, though merely as an example indicating omission to apply defendant's theory of law to the facts quotes a part of the fourth of those refused:
“In other words, an ordinarily prudent person, in attempting to cross a place used only by pedestrians, would not use the degree of care which such a person would use in attempting to cross at a place known by them to be frequented by vehicles propelled by artificial power, which cannot be instantly stopped, nor would an ordinarily prudent person apprehend as much danger in crossing a street at a regular crossing as would be encountered in crossing a street between crossings, not prepared for pedestrians.”
If it were permissible to rule on this, it might be suggested that it was not applicable to the facts, for evidence discloses that at the crossing there was no “place used only by pedestrians.” The pavement out in the street was not different at crossings than elsewhere. If it can be said to have been sufficient to invoke the attention of the court, it seems to have been unnecessary, for the fourth paragraph of the charge, after defining negligence and ordinary care, added:
“It is evident that the care exercised by an ordinarily prudent person is in proportion to the apparent danger involved; that is, where the apparent danger is great, greater care is required than where the danger is slight.”
In other instructions the jury was told that plaintiff was bound to exercise ordinary care in crossing the street. These, considered in connection with instruction partly quoted, sufficiently advised the jury of the care exacted of plaintiff. We are not saying that appellant properly raised this question, but that, even if he did, error would not be apparent. We may add that the instructions do not appear to have been one-sided and unfair.
The seventh assignment of error reads:
“Because the court erred in refusing to give instructions 1 to 7 as duly requested by defendant.”
These are referred to no more definitely in brief point or proposition, and they are argued en masse, except that the sixth instruction is set out, and it is said that “this phase of the case” is not presented in the instructions given. The difficulty is in the instruction requested and referred to in argument, which in part reads:
“If the defendant, even though he saw the plaintiff upon the street, believed that she would pass on to his left, and as a reasonably prudent man had the right to believe that he could pass her safely, and that no danger was involved by failing to warn her of his approach, the fact, if it be a fact, that he did not warn her, would not be negligence in this case.”
[3] How defendant's belief that plaintiff would pass on to his left would relieve or excuse him from giving the warning exacted by statute, even though he may have believed, acting in reasonable prudence, that he could pass her in safety, is not explained, and likely because of this defect the instruction was refused. Moreover, such warning was for the benefit of others on the street, and appellant's care in other respects would not relieve him duly to obey the law.
[4] The eighth assignment is to “giving instructions 1 to 12, inclusive, as a whole, and in particular, instructions 5, 11, and 12, thereof, for all the reasons stated in defendant's objection.” The brief point or proposition is equally general, though the argument centers attack on a portion of the eleventh instruction:
“However, in considering the question of whether or not the plaintiff did use ordinary care and caution for her own safety, you have a right to take into consideration the fact that when the plaintiff attempted to cross the street on foot at the time of the accident, she had a right to assume that any motorcycle, or other motor vehicle, would give timely warning of its approach, should any be approaching at such distance away as to afford an opportunity to give such warning, or signal.”
This would seem to go no farther than say to the jury that a person in crossing the street may rely on others, using it, obeying the law. That this is correct appears from decisions declaring that one about to cross a railway track may rely on trains not exceeding the speed limit defined by a city or town ordinance. Moore v. Railway, 102 Iowa, 595, 71 N. W. 569;Case v. Railway, 147 Iowa, 747, 126 N. W. 1037. To say that this might be taken into consideration does not, as seems to be assumed, mean that anything less than the exercise of ordinary care is to be exacted of one in crossing a street or highway whatever the situation, nor is there anything in the instruction so intimating. This much for the criticism. As will be observed, rule 53 of this court has not been observed. That portion relating to the preparation of the brief may as well be set out. It is to contain:
[5] It will be observed that whether the error relied on has been...
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