This аppeal involves two actions for damages following a collision of motor vehicles. The two actions involve the same basic problems. They were consolidated for trial and appeal.
Plaintiff, Ervin B. Koonce, was driving and plaintiff, Max L. Chandler, was riding in a car owned by Chandler. They were traveling in an easterly direction on U. S. Highway 275. Defendant, Herman Harger, was driving his loaded tractor-trailer in a westerly direction on the same highway. The vehicles collided, with resulting property damage and personal injury to plaintiffs. Both plaintiffs were thrown from the car. The collision occurred on a curve of 2° 30' in sharpness and 25° 30' in total change of direction. The curve is banked. The highway is paved concrete with nine-inch-wide curbs on both sides and measuring 20 feet wide from curb top to curb top. Plaintiffs claim defendant failed to yield one half of the traveled way and was 18 inches over the center line on plaintiffs’ side. Dеfendant claims that he was on his own side of the road and that plaintiffs were over the center line and ran into his vehicle.
The jury found for defendant. Plaintiffs, on appeal, challenge the admissibility of certain evidence, the refusal of a requested instruction and the giving of a claimed prejudicial instruction.
Defendant called several witnesses in his behalf, including two highway patrolmen and one former patrolman who was a member of the patrol at thе time of the collision. The latter’s *568 testimony and exhibits received in connection therewith provide the first issue here. The accident happened more than three years prior to trial, which may explain the uncertainty оf his testimony. He refused to either admit or deny the preparation and signing of a field memorandum. This memorandum, exhibit 20, was later identified by the other patrolmen as having been prepared by the former patrolman. The exhibit, on a Dеpartment of Public Safety Field Memorandum form, is a rough, freehand drawing of the curved highway. It shows the width of the shoulders on the highway, the location of the vehicles, parts and dehris after the collision and some distances. This exhibit was offered in evidence by plaintiffs. Counsel for defendant stated, “No objection.” The exhibit was then admitted. According to plaintiffs the exhibit tended to impeach the witness. The exhibit having been received without objection, its admissibility is not beforе us.
I. While testifying the witness was shown what is obviously a paper from a small loose-leaf notebook. He testified that the rough drawing, notations and comments thereon were in his handwriting and were notes he made at the scene of the аccident. It was identified as exhibit 21 and was offered in evidence by defendant.
Over plaintiffs’ objections that it was hearsay, irrelevant and immaterial, contrary to his own testimony and containing information held to be irrelevant and immatеrial, it was finally admitted.
The exhibit should not have been received.
On exhibit 21 a diagram appears showing the point of impact on defendant’s side of the road, the break in the paving directly opposite, glass, dirt and debris on defendant’s side of the road, also the words on thе face: “Pavement dry — both men drinking — liquor stolen out of car. Both men out of car— driver not known” and “Break in pave — first mark on pavement by truck 23" from north shoulder.” Also marked on the face was “(over).” On the back appear the wоrds: “talked to both men at Hospital. Stated they didn’t know who was driving or what actually happened.
*569 “Both men had been drinking. Had head injuries unable to determine how much. But odor of liquor very prominent. Chandler works for produce co.”
The witnеss’ testimony as to some of the matters shown on the exhibit had been rejected. There was evidence from the odor of alcohol that at some time and place the plaintiffs had been drinking, but it is not proper to support testimony as to the witness’ observations with a written statement of his own conclusions. Defendant tried to create a suspicion but had no evidence of intoxication other than the odor of alcohol. There was no evidеnce in the record to support the statement “Liquor stolen out of car”, and nothing to indicate how the witness arrived at such a conclusion.
II. What plaintiffs said to the officer while making his official investigation was not admissible. Baсhelder v. Woodside,
III. The exhibit was not offered for impeachment. It was offered by counsel in connection with the testimony of his own witness to augment and support the testimony. It was even more than that. It was a statement of unsuppоrted conclusions of the witness.
Evidence of contradictory statements made out of court are admissible as tending to discredit and impeach a witness but they are not admissible as affirmative proof of the facts related in the statement. Christensen v. Iowa State Highway Commission,
IY. Defendant contends that exhibit 21 was admissible under the provisions of section 622.20 of the Code. This section provides: “When a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it fully understood, or to explain the same, may also be given in evidence.”
*570
Exhibit 21 was an entirely separate writing from exhibit 20. It was not necessary to understand or explain exhibit 20. Plaintiffs’ offer of exhibit 20 and defendant’s agreement to its receipt did not open the door to unsupported conclusions and privileged statements in another writing. Jones v. Krambeck,
Posed photographs, drawings and diagrams are frequently admitted, after proper foundation, as illustrative of the testimony of witnesses. Stiefel v. Wandro,
Defendant cites only one ease in support of his position. Spani v. Whitney,
The Nebraska court then said: “The conсluding sentence gives the reason for the rule.” We agree. The cases cited by the Nebraska court involve instances within the reason for the rule. In the case before us, exhibit 21 was not necessary to understand or explain exhibit 20.
It is frequently said that the admission or rejection of such evidence is within the sound discretion of the trial court. The admission of exhibit 21 was beyond sound discretion and was prejudicial.
V. At the close of the evidence plaintiffs requested аs a part of the instruction on contributory negligence the following:
“In this connection testimony has been received in this case tending to show that the plaintiffs, Koonce and Chandler, had been drinking at some time before the time and place in question. This testimony is not to be considered by you as evidence, *571 in itself, that said plaintiffs were negligent in the respects above mentioned, but you may consider said testimony in deciding whether or not said plaintiffs were, at thе time and place in question, observing the foregoing rules which should be observed by them and exercising such care and caution for their own safety as reasonably prudent persons would have exercised under the circumstanсes.”
The request was refused, the court being of the opinion that the matter was sufficiently covered by the last paragraph of Instruction No. 15. This paragraph said:
“There has been testimony in this case from which the inference might be drawn that the plaintiffs, or one of them, had been drinking prior to the happening of this accident. If you find this to be the fact, it should be considered by you as bearing only on the care exercised by the plaintiffs or either of them. It is not of itself necessarily contributory negligence.”
Plaintiffs took timely exceptions and in particular objected to the use of the word “necessarily” in the last sentence.
The word “necessarily” is defined in Webster’s New International Dictionary, Second Edition, Unabridged, as follows: “Unavoidably, indispensably.” In the more recent Third Edition it is defined as “in such a way that it cannot be otherwise: of necessity: inevitably, unavoidably.”
Words and Phrases, Volume 28, quotes cases holding that “neсessarily” means unavoidably, indispensably, so that a thing which necessarily must happen may reasonably be said to be certain to happen. Also that the word “necessarily” means inevitably, not to be avoided even by the exеrcise of the highest degree of care, and that such an instruction is erroneous if it imposes too high a degree of care. It is also held that the word “necessarily” is not synonymous with “reasonably.”
Evidence of drinking was admissible, but, as indicаted in both the requested and given instructions, should be considered only as bearing on the care exercised by plaintiffs. The harm in the instruction given arises from the word “necessarily.” This word weights the instruction in favor of a finding of contributory negligenсe. It gives undue emphasis to the evidence that witnesses detected the odor of alcohol. The words *572 used suggest and do not sufficiently refute the idea that evidence of drinking could alone support a finding of contributory negligence.
Nicholson v. City of Des Moines,
“* * * Intoxication in and of itself is not * * * conclusive evidence of contributory negligence. The true rule is laid down in Cramer v. The City of Burlington,
“Another case much in point on this question is Kingsley v. Mulhall,
“In Sylvester v. Incorporated Town of Casey,
See also Instruction No. 2.13, Iowa Uniform Jury Instructions of Iowa State Bar Association.
See also State v. Graff,
The word “necessarily” is, of course, not as strong as the word “conclusive.” It leaves a door open for escape frоm a *573 finding of contributory negligence, but it is an unfortunate judicial suggestion to the jury, giving undue weight to the evidence. The word was too strong. It invited a finding by the jury. We disapprove its use in the instruction.
For the reasons stated the case is — Reversed and remanded.