Gipe v. Lynch

McClain, C. J. A brief narrative of the circumstances under which the plaintiff receiyed the injuries for which he sought to recover damages will afford a sufficient basis for the discussion of the questions of law argued in behalf of appellant. About 'half past six o’clock on a dark and rainy evening in the latter part of October the plaintiff, driving with his wife and two children in a single buggy along ■a highway and approaching a bridge, observed some vehicle coming toward him across the bridge which turned [629] out to be an automobile without lights. After the plaintiff saw the vehicle crass the bridge, he did not pay fui*ther attention to it, although, as he testified, he thought it to be a buggy and that it had been turned about and was being driven in the other direction. Plaintiff further testified that, when the horse he was driving came opposite to the automobile, the machine emitted a loud explosive noise and the horse jumped to the opposite side of the road, upsetting the buggy, and threw out plaintiff and his family with the result that plaintiff’s face and chest were bruised and two fingers on his left hand, around which one of the lines was wrapped, were strained and injured. The defendant voluntarily paid for the damage to the buggy in which plaintiff was driving, but plaintiff sued for the injuries received by him and for loss of time in his occupation resulting from such injuries. The negligence .alleged was in operating the automobile upon the highway without a light, without any wanning of its presence, at a time when by statute the defendant was required to have lights on his machine, and in causing or permitting the automobile to suddenly and without warning give forth loud and explosive noises which .frightened plaintiff’s horse so that he became unmanageable and ran off the road into the ditch, overturning the buggy. The court instructed the jury that before plaintiff could recover he must prove the material allegations of .the petition, which were, first, that the defendant was negligent in the matters charged in the petition, and, second, that plaintiff was free from negligence that contributed to the accident of which he complained. [630] i. Automobile accident: contributory evidence06 * [629] I. One of the' alleged errors was in submitting to the jury any issue as to plaintiff’s freedom from contributory negligence; the contention being that there was no evidence on which the jury could base a finding that plaintiff was guilty of such contributory negligence as would [630] defeat his recovery. But the plaintiff specifically alleged, as he was bound to do in such a case, that , *,11 he was driving his horse with due care and . was *ree ±vom- a&y negligence contributing to the accident, and there was evidence tending to dhow thalt, with knowledge of the presence of a vehicle between him and the bridge, he continued to drive his horse at high speed, holding one of his children in his lap so that he would not have an unobstructed view of the road in front of him, and attempting to pass by the vehicle without taking any precautions for his safety. True enough he testified that he thought the vehicle had been turned about and was going the other way, but, if it bad already recrossed the bridge, he could have seen it, for he had seem it approaching over the bridge, and the jury might well ¡have found that, under the circumstances, he did not take proper precautions in attempting 'to pass a vehicle which he had reason to believe was between him ■and the bridge. We are satisfied that under the evidence there was a question of contributory negligence for the jury. 2. Same: instructions harmless II. The criticisms of the court’s instruction with reference to contributory negligence are not well founded. After defining negligence in general and ordinary negligence, and also ordinary care as applicable 'to the conduct of defendant as well as of plaintiff, the court somewhat inaptly said that “contributory negligence is negligence not only on the part of the one committing the injury hut also on the part of the one upon whom the injury is committed and by which he contributed thereto.” But this inapt statement was followed in other instructions with a sufficient explanation of what would constitute contributory negligence, and could not have been in any way prejudicial to the plaintiff. [631] 3' ' [630] In another instruction the court told the jury that plaintiff could recover on account of the negligence of [631] defendant provided he h'ad 'shown “by a preponderance of the credible evidence that he himself was free from 'all negligence that contributed to the accident complained of.” The criticism of this instruction is in the use of the expression “'all negligence”; but clearly any negligence of the plaintiff that contributed to the accident complained of would preclude recovery by him on account of such accident, and, as thus qualified, the expression “all negligence” wa;s not erroneous or misleading. 4' ’ In another instruction the court told the jury that, if “plaintiff was guilty of contributory negligence — that is, negligence that contributed in .any way to the accident and but for which it would not have occurred” —he could not recover, and the criticism of this instruction is- that the jury was 'thereby allowed to find plaintiff guilty of contributory negligence in being at the place where he was injured, inasmuch as if he had not been there the accident would not have occurred. But there is no warrant for placing such construction on the language used. It was proper to define contributory negligence as negligence that contributed in any way to the accident and but for which it would not have occurred, and the jury would not have been justified in assuming that any conduct on the part of plaintiff but for which the accident would not have occurred was in itself contributory negligence. s' ' ‘ There was no warrant in the instructions for the assumption on the part of the jury that any negligence on the part of plaintiff, without regard to its proximate connection with the accident, either in itself or concurrently with the negligence of defendant, would defeat plaintiff’s recovery. This suggestion also meets the criticism of another instruction in which the jurors were told that, if they should find frlom the evidence that the accident occurred by reason of the negligence óf [632] boifch plaintiff and defendant, the plaintiff could mot recover. 6 Same-submission* of issue. III. There was no evidence -tending to show any other loud and sudden noise than that produced by the engine of defendant’s automobile in being allowed to run while -the machine was standing still at the side of the r(>a<l> and the court therefore properly refused to -submit to the jury any question in regard to the -alleged negligence of the defendant in allowing or causing his automobile to make without warning a loud -and sudden noise upon the highway, in the absence of anything in the evidence to indicate that defendant observed or in the exercise. of ordinary care ought to have observed that the noise of the engine was frightening the plaintiff’s horse and might have stopped the explosions of his engine in time to have avoided the accident which resulted from such frighlt. There i-s nothing whatever to indicate that plaintiff’s horse was frightened until he was beside the 'automobile and in the ac't of passing it, and defendant could not therefore have observed any danger, that the horse would be frightened by 'allowing his engine to run, in time to have avoided such danger. It was not in itself negligence on the part of defendant to allow his pngine to run wibile his machine was standing still fo.r a temporary purpose by the highway. House v. Cramer, 134 Iowa, 374. y. Same. IV. The allegation that defendant’s machine was “a large and powerful gasoline automobile,” and the evidence tending to show that the engine was “of forty horse power,” had no material relation to any negligence of the defendant charged in the petition or supported by the evidence, -and the court properly instructed the jury that the defendant had the right to be in the highway with a forty horse power machine and that no -attention- should be paid by the jury to arguments of counsel in regard to the power- of the machine. The size or power [633] of the machine had no relation whatever to the alleged negligence of the defendant in failing to have lights nor upon his alleged negligence in allowing his machine to make loud and explosive noises. There was nothing in the evidence to warrant any inference that the noises made in the running of a forty horse power engine are in their nature more terrifying or disturbing to an approaching horse than those made by an engine having less power. Any inference on the part of the jury that it was the duty of defendant to stop his forty horse power engine when, it would not have been his duty to stop his engine if it had been of less power would have been, wholly unwarranted under the evidence. 8. Same. V. The criticism made of an instruction to the effect that there was no evidence of knowledge on the pan of defendant that plaintiff’s horse was afraid of automobiles or that plaintiff was approaching along the highway is without any merit. The thought of counsel seems to be that, under the instruction, defendant was not liable for the result of negligence such as might cause injury to any traveler on the highway of whose presence he was not in fact aware. But as there was no evidence of any negligence calculated to cause injury to another person using the highway save that of failure to have lights on the machine, and as the question about the lights was sufficiently presented, the instruction complained of could not have been in any way prejudicial to plaintiff’s case. 9. Instructions. VI. As the jury found for the defendant, it is unnecessary to consider an alleged error in an instruction relating to the measure of damages. The repetition at the end of this instruction of the statement that plaintiff coidd not recover at all unless defendant was negligent, and plaintiff was free from negligence in any way contributing to the alleged injury, was a correct statement of a general proposition and could not [634] have been prejudicial to the plaintiff, even though it was but a repetition of the same proposition as stated in other instructions. We find no ground whatever for the criticism that the court indicated to the jury, by his reference in different 'connections to the subject of contributory negligence, that a verdict ought to be returned against the plaintiff. The 'assignments of error relate entirely to the giving and refusal of instructions. We find nothing in the instructions given which could in any w.ay have been prejudicial to plaintiff’s case, and nothing in the instructions asked and refused, which in view of the record should have been given, not sufficiently covered by the instructions which were given. The judgment is therefore affirmed.