Scott v. O'Leary

Deemer, J. — This action was brought by Clyde Scott, a minor, during his lifetime, in the name of George Scott, his next friend. During its pendency, but before trial, Clyde Scott died, and plaintiff, Blanche Scott, the administratrix of his estate, was substituted as plaintiff. It is not claimed that Clyde Scott died as a result of his injuries; but it is averred that he suffered personal injuries, was at expense for medical treatment, that he lost time, and that his horse was killed and his buggy and harness injured. In speaking of the plaintiff, we shall, unless otherwise stated, refer to Clyde Scott. It is averred in the petition that plaintiff, while driving a single horse hitched to a top buggy, along a public highway in Johnson county, Iowa, known as the lower Muscatine road, traveling in a southeasterly direction, met the defendant, who was coming from an opposite direction in a large high-powered automobile at an excessive, unlawful and unreasonable rate of speed, with the lights of his car in an imperfect condition, and that he (defendant) reck [225] lessly and carelessly and without looking to see if there was any one in the road, and without using any care or caution, drove his automobile directly into plaintiff’s horse and vehicle, killing the horse, injuring the buggy and- harness, and throwing him (plaintiff) to the ground, serously injuring him. He further pleaded that defendant did not turn out or give him any part of the highway, and that he might have avoided plaintiff had he been so minded; but on account of not paying4 -attention to where he was going, the defective condition of his lights, and the high rate of speed, the collision occurred. Plaintiff introduced testimony in support of all of these-issues, and it is not seriously contended that the verdict is without support. The points relied upon for reversal have reference to rulings made on the admission and rejection of testimony, to the instructions given, and to the proposition that deceased was, as a matter of law, guilty of contributory negligence. i. Appeal: ■ inlsfcondtsiveness. I. Without setting forth the testimony, it is sufficient to say that the question of contributory negligence was for a jury. Por defendant it is contended that deceased was asleep at the time of the collision, but the jury in answer to a spécial interrogatory found this was not true, and, as this finding has support'in the testimony, we should not interfere. 2. Evidence: matters of fact and not opinion. II. A witness for the plaintiff, who went to the scene of the collision, and who assisted in pulling the automobile off the horse, was permitted to .testify, over objections that he was incompetent, and that the inquiry called for an opinion and not a fact, that the machine was in gear, and that the brakes were not set. Surely these statements were of facts, and no expert knowledge was required to determine the matter. [226] 3’ expert evS ters of observation. [225] III. The following extract from the record presents the next ruling complained of: “Q. What condition was he in when he came out of the hospital? Describe to the jury from what you saw what condition he was in. A. [226] Well, lie bad cuts and burns on bis face; be bad no use of bis bead and neck and tbe right arm. (Defendant moves to strike out tbe statement that be bad no use of bis bead and neck and . • right arm as a statement of tbe conclusion of witness and incompetent; tbe witness is not competent to testify on that subject. Overruled; exception saved.) Q. Now, explain to the jury. Describe what you mean by not having use of bis bead, neck, arm, and shoulders. A. Whenever he went to turn bis head like any person would, he would have to turn bis whole body; be had no use' of bis neck, or couldn’t turn bis bead like any one else. (Defendant moves to strike out tbe answer for tbe same reason— statement of a conclusion as to what be could do or could not do. Overruled as to tbe whole answer if tbe motion includes tbe whole; exception saved.) ■ Q. How long did be remain in tbe condition that you have described? (Same objection for tbe same reasons and asking for tbe opinion of tbe witness. Overruled; exception saved.) A. Why, be remained that way some seven weeks like that when be got so be could do little things around.” Tbe witness giving this testimony was not an expert; but we think bis testimony was competent, for be really described nothing more than be saw. That such testimony is competent, see Rheininghaus v. Association, 116 Iowa, 364; Stone v. Moore, 83 Iowa, 186; Kostelecky v. Scherhart, 99 Iowa, 120; Bailey v. Centerville, 108 Iowa, 20; State v. Shelton, 64 Iowa, 333. Testimony regarding buggy and automobile tracks near tbe scene of tbe accident, was objected to as calling for tbe conclusion of tbe. witness. Manifestly these objections are untenable. [227] 4. Contributory e^de^c*0151 habits. [226] A witness was asked if be knew of tbe habits of tbe deceased as to his sleeping while driving upon tbe public highway, and another as to certain statements made by Clyde Scott during his lifetime, .in which be stated that be [227] was in the habit of going to sleep while driving on the high-waN tilis testimony was excluded, and of this complaint is made. In this connection should be stated that defendant claimed Scott was asleep at the time of the collision. Where there are no eyewitnesses of a transaction, it has been held that testimony as to the habits of one whose conduct is in question, may be- shown as bearing upon his care or the want of it. Frederickson v. Railroad Co., 156 Iowa, 26. See, also, Dalton v. Railroad Co., 114 Iowa, 259; Gray v. Railroad Co., 143 Iowa, 268; Hall v. Rankin, 87 Iowa, 261; Stone v. Hawkeye Ins. Co., 68 Iowa, 737. But the testimony must relate to his general habits and not to particular instances. The general rule in civil cases is that good character, or the reverse, can not be shown in negligence cases. Wigmore on Evidence, sections 64, 65, and cases cited. 5. Admission of evidence: harmless error. In the instant case there were eye witnesses of the transaction, and defendant was permitted to introduce certain admissions said to have been made by plaintiff’s intestate regarding the transaction. Under the n , rules previously announced by us, there was . . . no error in the rulings, and in any event no1 prejudice. Answers to the questions necessarily would have involved Scott’s conduct with reference to another horse and vehicle, and in one instance, at a time a year or more prior to the accident. The testimony, even if admissible,, was so inconsequential in character that we would not be justified in reversing the case. Under the testimony, the jury might very well have found for plaintiff, although he was asleep at the time of the collision. 6. Evidence: wfthsaat!de-s cedent. Mrs. Kate Scott, Clyde’s mother, was called as a-witness and permitted to testify, over objection, that deceased-was ^er son> an(l that she had given him his time and permitted him to work for himself ; that he collected his own wages, attended to Ms own business affairs, and owned property in his own [228] name. The only specific objection was that the question eliciting this information called for a personal transaction with one deceased; that the witness was incompetent; and that the statement would be a conclusion of the witness. There was also a general objection that the testimony was incompetent. None of these objections were tenable. This testimony will be considered again when dealing' with the instructions. It should, also be stated that the son Clyde, was married on November 16, 1910, which was something like three months after the accident. These are all the rulings on the testimony which need be considered. IV. The trial court gave the following instructions: 7. Highways: ofgautomo£ne? instruction. You are instructed that it is the law of this state that no person shall operate an automobile on a public highway at a rate of speed greater than is reasonable and proper, having regard to the traffic and use of the highway, or so as to endanger the life or ]jmb 0f ariy person, and not at a greater average rate than twenty miles per hour. You are instructed that the statute expressly authorizes the use of automobiles on the highway and confers on the operators of such vehicles the same rights in the road as are accorded to the drivers of other vehicles, and you are instructed that if the defendant operated his 'automobile with such care as an ordinary cautious and prudent man would use under like circumstances, having a regard for the use of the road at the time by others (he being bound to know that people were likely to be traveling upon the same), and using reasonable and ordinary care under all of the circumstances, there can be no recovery, and you are instructed that, while a party operating an automobile at an average speed of more than twenty miles per hour is prima facie guilty of negligence, yet this may be overcome by evidence of the facts and circumstances surrounding the case as stated above. All that is required is that he should use such care as an ordinarily cautious and prudent person would use under like circumstances, having a regard for the use of the road at the time by others, and, if he did so, he would not be guilty of negligence. [229] This is complained of because of the use of the phrase “operating an automobile at an average speed of more than twenty miles per hour is prima facie guilty of negligence.” The words in parenthesis are also complained of. The instruction, in so far as it relates to speed, was in the language of the statute. Code Supp. section 1571-h. And we see no error in repeating that language although it may be a little obscure. Defendant admitted, while on the stand, that he .was running his automobile, at the time of the accident, at the rate of thirty miles per hour, and he also admitted that fact to others. Of course it may be difficult to' determine whether or no one is operating an automobile at an average speed of more than twenty miles per hour, without knowing the distance traveled, and time occupied, but that is no reason for withholding a statement' of the law as written. It would seem that a “joker” was introduced into this section of the statute, and that it might be' well for the Legislature to remedy the matter. If the jury should have thought the court intended to charge that a rate of speed of more than twenty miles an hour was prima facie evidence of negligence, still we would not be disposed to reverse the judgment, for, under the circumstances disclosed by this record, we should say that such a-rate of speed was prima facie evidence of negligence. But this is not what the instruction said. 8 Same-automobiles/ care-As to the part of the instruction ■ in parenthesis, we think it is correct, and here copy' from a case in Wisconsin the following: . “The driver of every automo-, bile on a country road knows that live stock roam about the roads unattended; that travelers on foot, on horseback, and in various kinds of vehicles are -found using the highways at all seasons of the year and all times of the day and night; such a driver has no right to expect, and does not expect, a free and unobstructed driveway over a well-defined track, as does the engineer of a locomotive, or even the motorman [230] of an electric car. The automobile has created a new peril in the use of our public highways — a peril that unfortunately has been greatly enhanced by the recklessness of the operators who propel the machines with the speed of railway trains along crowded thoroughfares. Some rule, commensurate with the public safety, and not unduly harsh or restrictive upon the users of motor cars, must be evolved to meet a situation which has recently arisen.” Lauson v. Fond du Lac, 141 Wis. 57 (123 N. W. 629, 135 Am. St. Rep. 30.) This, it seems to us, is a sound principle of law, and we here adopt it as a proper rule for this state. „ g. Emancipation evidence^ • wafv¿?ry: mstruction. V. Instruction No. 12 reads as follows: “It being admitted that the deceased, Clyde Scott, was but nineteen years of age at the time of the claimed injury, you are instructed that, if you have found that plaintiff 7 d r L entitled to recover in this action, she would not be entitled to anything for loss of earnjngS fr0m the time of the accident or injury, if any, until the date of his marriage, for during that time his earnings in law belonged to his parents, unless the plaintiff has shown you that, prior to the time of the claimed injury, deceased had been given his time by his parents — that is, he had been allowed to work and collect his wages and keep them for his own use without accounting to his parents for the same.” This instruction is challenged because there was no testimony as to emancipation. This is bottomed upon the thought that there was no showing that his father was dead; hence the mother’s testimony hitherto recited was not sufficient to show emancipation. There was testimony from Clyde’s brother that he (Clyde) had been living in his family, attending to his own business and drawing his own wages; and, while there was no testimony that his father was dead, this is the fair import of the evidence. But if this were not true, no such objection was made to the mother’s testimony, and the fair inference from the objection made to her testimony is that [231] she was the proper person, to emancipate her son. Had the objection been made that she was not the proper person to emancipate him, the matter might easily have been cured. As this was not the objection, the defect was cured. Kubic v. Zemke, 105 Iowa, 271, sustains the action of the trial court. 'instruction: presumption. The trial court told the jury that it might allow for damages to the buggy and harness if it found that any such damages were shown, and it is now said that there was no testimony whatever that there was any such damage, and that there was no direct testi- " . , , —,, . mony as to the amount ox such damage. I his is a mistake. There was sufficient testimony to take the matter to the jury upon the question of damages to the buggy. There was no testimony as to any injury to the harness, or as to the value thereof, and it would have been better had the court made no reference thereto. But the instruction authorized recovery for damages to the harness only in the event such damages were shown by the testimony. We must presume that the jury followed the instructions, and that it made no allowance for damages to the harness. There is no reason for supposing that the jury allowed anything for harness damage. The harness was not described, nor was there any testimony as to the value thereof at any time, or as to the damages done. Upon such a record we should not reverse because of the instruction given by the court on this matter. • In support of these views see Trapnell v. City, 76 Iowa, 747; Parks v. Town of Laurens, 153 Iowa, 567. If the jury disregarded the instructions of the court, the allowance for damages to the harness must have been small in any event, and such allowance would not call for a reversal. The verdict was small in view of the injuries sustained, and such errors as appear in the record aré not sufficient to call for a reversal. [232] No prejudicial error appears, and the judgment will be, and it is, — Affirmed.