180 Iowa 1146 | Iowa | 1917
The plaintiff brings this action at law to recover damages on account of the death of his intestate, Lena L. Daggy. As ground for charging the defendants with liabilty for the death of deceased, the petition alleges that, on the night of August 29, 1914, deceased was riding along
The Millers answered jointly, and Wagner separately, each denying all allegations of negligence made in the petition, and alleging that the injury and death of the deceased were brought about by purely accidental causes. There was a tidal to a jury, and verdict returned for plaintiff against all the defendants for $5,742, and from the
Before attempting a consideration of the several appeals, ive Avill recite a feAV of the facts Avhich are either conceded or have some material degree of support in the evidence. The deceased and all the defendants lived in the country north of the city of Des Moines, and had all been in the city on the afternoon in question. In the eAmning, after dark, all moved along the same road homeward, though there was no immediate association between the defendants and deceased. The latter evidently left the city first, and had not been seen or overtaken by the defendants until the moment of the collision hereinafter mentioned. The Millers concede that the lighting apparatus on their car Avas Ayeak or defective, though they insist that their lamps Avere not extinguished, and that the light so afforded Avas reasonably sufficient. The evidence would justify the finding that, because of the unsatisfactory condition of the lights on Miller’s car, there was an agreement between the defendants that Wagner should follow it with his car, on which the lights were in order. Concerning the rate of speed at which they were moving at the time of the collision, the defendants unite in estimating it at not to exceed 15 to 20 miles an hour. There is evidence, hoAvever, of statements and admissions on their part, soon after the accident, indicating that they Avere running at 25 miles or inore an hour. It appears quite conclusively that defendants came upon the buggy without discovering it until collision was imminent, Avlien Miller made a quick turn to the left, and, in attempting to pass, the hub of the right rear Avheel of his car caught the left rear wheel of the buggy, tossing it in such a manner that the woman was thrown to the ground, Avhere, as the evidence fairly tends to show, she was almost immediately struck by the Wagner car. Plaintiff’s evidence also tends to show that the buggy,
Concerning the charge of negligence in the manner of lighting the Miller car, and its management and rate of speed at the time of the collision, it is argued in behalf of this appellant that there is no evidence of any insufficiency of light, and that, although this defendant was the owner of the car and riding therein, he had no hand or part in driving it, and is, therefore, in no wise liable for the consequences of the collision. Neither contention is sound. It is true that the defendants’ witnesses unite in saying that the lights on this car were not extinguished, and were of sufficient strength to light the road in front of them in the manner required by law; but on the other hand, the husband of the deceased, who was driving the buggy, swears that, as he approached the place where the collision occurred, and was about to turn to the left to take a cross road, his wife said to him, “Don’t turn. There’s an automobile coming;” whereupon he looked back, and saw only what appeared to be a dim lantern light, when almost immediately the buggy was struck by the passing car, and he and his wife thrown out. Had the car lights been shining in the manner claimed by the defendant, it is quite inconceivable that the husband should not have recognized their meaning; and while it is possible that he is mistaken, . or does not testify truthfully, the question of fact so raised was for the jury. Moreover, the plaintiff’s case in this respect is strengthened by the well established fact that the lighting equipment of the car was defective, and that because thereof it was agreed that the Wagner car should follow, and thereby lend the benefit of its lights,
The legal principles thus applied are of such familiar and elementary character as to forbid the extension of this opinion for the discussion or review of precedents. Carpenter v. Campbell Automobile Co., 159 Iowa 52. The case of Withey v. Fowler Co., 164 Iowa 377, cited in this connection by the appellant, is not in point, either in fact or in principle. In that case, the plaintiff was an invited guest, riding in a car over which she neither exercised nor had any authority or right of control, and it was held that the negligence, if any, of the driver would not be imputed to her. The distinction between the cases is manifest.
Many errors are assigned upon the instructions given the jury, and upon the refusal of the trial court to give other instructions requested. Most of the assignments are not argued. Other exceptions relate to the sufficiency of the evidence to justify the submission of the question of negligence on the part of this appellant, a question we have already considered, and ruled against the appellant’s contention. We find no ground upon which to disturb the verdict against William Miller, and the judgment thereon is affirmed.
II. For the appellant Roy Wagner, counsel argue but two propositions: First, that there is a misjoinder of parties defendant; and second, that the verdict against him is without support in the testimony.
The question thus presented is the only one upon which there is room for serious debate. Our statute, Code Section 3182, provides that “the defense of a minor must be by guardian,” and that “no judgment can be rendered against a minor until after a defense by a guardian.” Though this matter was not pleaded,, it was shown upon the trial that the young man was but 17 years of age. Upon this disclosure’s being made, no request or motion for appointment of a guardian for him was made by either party, and the action proceeded to a verdict before any advantage was taken of the omission. Were the defendant of adult years, this omission could well be treated as a waiver of the error, but the same theory or principle which makes an infant incapable of conducting a defense in his own right would seem to necessitate a holding that he is also incapable of waiving the benefit of the -statute which provides in mandatory terms that his defense must be by guardian, and that Avithout such defense, judgment shall not be entered against him. This case does not fall within the rule of Reints v. Engle, 130 Iowa 726, cited by the appellee. There, the de
For reasons stated, the judgment is affirmed as against the defendants William Miller and Roy Wagner, but reversed and new trial ordered as to defendant Ira Miller, —Affirmed in part; reversed in part.