Withey v. Fowler Co.

• Decision Date: 14 March 1914
• Citation: 145 N.W. 923,164 Iowa 377
• Parties: WITHEY v. FOWLER CO.
• Court: Iowa Supreme Court

164 Iowa 377

145 N.W. 923

WITHEY

v.FOWLER CO.

Supreme Court of Iowa.

March 14, 1914.

Appeal from District Court, Black Hawk County; Robert Bonson, Judge.

Action at law to recover damages for personal injury. Verdict and judgment for plaintiff, and defendant appeals. Affirmed.Mears & Lovejoy, of Waterloo, for appellant.

Edwards, Longley & Ransier, of Waterloo, for appellee.

WEAVER, J.

The course of Lafayette street in Waterloo, Iowa, is from northwest to southeast. It is crossed at right angles by Fourth street. About 100 feet south of the intersection with Fourth street a 16-foot alley opens upon Lafayette. The alley is a private one, maintained for the convenience of the defendant in hauling goods to and from its wholesale warehouse. Lafayette street is paved, is 50 feet wide between curbs, and is bordered on either side by a 15-foot sidewalk. A street car track occupies the middle of the paved way. The immediate circumstances attending the accident, so far as they appear to be without material dispute, are as follows: One of defendant's employés with a truck load of goods was driving along Lafayette street from Fourth street in the direction of the alley. The truck was constructed with low front wheels which would turn under the body of the vehicle. It weighed two tons, and was carrying a load of about 5 1/2 tons. As this load was moving down the street in the direction of the alley one Loomer, driving an automobile, in the rear seat of which the plaintiff, with others, was riding as an invited guest, turned into Lafayette street from Fourth, along the curb on the right. As the automobile moved at a more rapid pace than the truck, the former had evidently gained on the latter, and was about to pass it when the truck was swung to the right, with the purpose of entering the alley. The automobile in its course near the curb had nearly crossed the alley opening when the heavy truck came into contact with the car, the end of the projecting tongue of the truck crushing the hand of the plaintiff against the body of the car and inflicting a very serious injury. Recovery of damages is sought on the theory that the injury was occasioned by the negligence of the defendant's driver in that he did not exercise reasonable care in the driving and management of the truck. Negligence is further charged in that the driver failed to obey an ordinance of the city, requiring all vehicles to be driven upon the right-hand side of the street upon which they are moving, and, upon turning to the right into an intersecting street, avenue, or alley, such turn shall be made as near as possible to the right-hand curb. Negligence is also charged because of defendant's failure to have its truck equipped with a brake. The claim of the plaintiff is put in issue by a denial of all the allegations of the petition.

The errors assigned are quite numerous and we shall attempt consideration only of such as counsel have thought of sufficient importance to make the subject of argument, and in so doing shall follow as near as practicable the order of their presentation in the brief.

[1] I. Objection was interposed by defendant to certain questions asked plaintiff by her counsel, on the ground that they were leading and suggestive of the answer desired. The particular incident to which this criticism is directed is the following: After plaintiff had been cross-examined on the part of the defense her counsel addressed to her an interrogatory as follows: “Q. Mr. Lovejoy has repeatedly suggested in his questions, or assumed, rather, in his questions, that you went riding on this morning by virtue of some arrangement or agreement between the four of you. I will ask you to state now to the jury just how it was that you happened to go riding that morning. Who asked you, if anybody did, and just how it happened?” To this the defendant objected as leading and suggestive, and that the language of counsel was improper and not a correct statement of the facts concerning the cross-examination. The objection was overruled, and the witness answered, in substance, that she was riding at the time of the injury in Mr. Loomer's car upon his invitation, extended to her and other friends to drive about and see the city, and that she did not in any way control or direct the movement or course of the car. Aside from the statement with which it was prefaced the question appears to have been entirely unobjectionable. It was a material inquiry whether plaintiff was a mere guest of Loomer in the car, having no control over its management, or was the owner or hirer thereof, and the question was fairly framed to develop the fact.

[2][3] It may be conceded that ordinarily counsel should not put a construction of his own upon the course of the cross-examination and embody it in a statement to the witness on redirect examination, but we are wholly unable to discover here the possibility of any prejudice therefrom. The fact that plaintiff was the guest of Loomer in the car, was riding upon his invitation as a mere matter of pleasure or diversion, and without any agency in the management of the vehicle, was in no manner disputed upon the trial. That this court may, upon a sufficient record, reverse the judgment of a trial court for error in overruling objections to leading questions may be admitted, but the general rule is otherwise. To justify a reversal on such grounds requires a clear showing of abuse of discretion and apparent material prejudice to the rights of the objecting party. State v. Bodekee, 34 Iowa, 520;State v. Moelchen, 53 Iowa, 310, 5 N. W. 186;Hall v. Bank, 55 Iowa, 612, 8 N. W. 448;Reddin v. Gates, 52 Iowa, 214, 2 N. W. 1079;Hilton v. Mason, 92 Ind. 157.

[4] II. In her petition plaintiff alleged, among other things, that she was a musician and teacher of music by profession, and that the injury to her hand had so crippled it as to prevent her use of the piano and destroyed her ability to teach the use of the instrument. On her examination as a witness she testified that she had been married about 24 years; that she had continued her occupation as a music teacher down to a period about six years prior to her injury, during which period she had given no lessons. She also said that prior to her injury she frequently played the piano as a matter of entertainment and on public occasions. She was then asked by her counsel to what extent, if any, the injury to her hand would affect her ability to teach piano and organ playing in the future should she desire to do so, and, over the objection of the defendant, she was allowed to answer, “It would hinder me in this way: That I have to execute and show the pupil many times how to do the piece. It helps them greatly in their lessons, and I could not do it with the left hand.” In support of the exception to this ruling and evidence it is argued that, in view of the conceded fact that plaintiff was a married woman, and had not been teaching for several years prior to her injury it should be held that she was not a music teacher in such sense that she could recover damages for being deprived of her power to earn money in such occupation. Further pressing this proposition upon the court's attention, the defendant, in submitting the case, asked the court to charge the jury as follows: “The plaintiff cannot recover in this action for any loss of earning capacity by reason of her inability to play the piano and give music lessons. There is no evidence in this case upon which to base any claim for damages in respect to the loss of earning capacity of the plaintiff, and in estimating the amount of damages, if any, the plaintiff may recover, you will wholly disregard any evidence that has been given in the case regarding the amount of her earnings, if any, as a music teacher, and you will award no damages to the plaintiff on account of any independent occupation of her own.” The request was refused. It is earnestly contended for the defendant that, as plaintiff was not teaching music at the time of her injury, and had not been so engaged for several years, and there was no showing of a definite purpose to resume such occupation, the fact of her skill, capacity, and attainments in her profession was wholly immaterial, and entitled to no weight or value in estimating the damages she sustained by her injury. This we think is not the law. That under the law of this state a married woman may pursue an independent business or employment and have, enjoy, and control the fruits thereof, and if negligently killed or injured damages may be recovered by her, or her administrator, with reference to her individual skill and capacity in her separate occupation is of course too well settled to admit of dispute. Niemeyer v. R. R. Co., 143 Iowa, 129, 121 N. W. 521, 23 L. R. A. (N. S.) 408, 136 Am. St. Rep. 752;Fleming v. Shenandoah, 67 Iowa, 505, 25 N. W. 752, 56 Am. Rep. 354;Bailey v. Centerville, 108 Iowa, 25, 78 N. W. 831. To this extent the right of a married woman is not affected by her marriage relations.

It has been held, and upon unimpeachable grounds, that a man's education, training, skill, and capacity to earn money is a proper subject of consideration in estimating damages for his physical injury or death even though he is not in actual employment at the time of his death, or even if he has retired therefrom with no present intention of resuming it. Simonson v. R. R. Co., 49 Iowa, 90. In other words there is value in a man's power or capacity to earn money. Railroad Company v. Ward (Ky.) 44 S. W. 1112. His natural and acquired power, skill and capacity to earn money, are in a very proper sense his capital. Its value may be lessened, but is not necessarily wholly eliminated because not employed. The same is true of a woman, except so far as it may be affected by her marriage. Marriage, as we have seen, does not take away her right to pursue an independent occupation. If she suspends or abandons such occupation, and...