175 Iowa 528 | Iowa | 1916
On the other hand, the testimony on behalf of the defendant was that he saw the gathering on the hillside before he approached the foot of the hill; that he did slow down; that he changed to low gear; that he went up the hill at the rate of 6 or 8 miles an hour; that he held to the beaten track; that, as he came between the automobiles and the standing women and children, -the plaintiff, for some unaccountable reason, rushed across the road in front of his car; that she was so close to him that he did not have time to stop.
Concededly, the defendant’s automobile, after striking the plaintiff, ran in a northwesterly direction across the west side
The argument of appellant at this point deals with the relative weight of the testimony and the corroborating probabilities. Accepting, however, the version of the accident as detailed by plaintiff’s witnesses, there can be little ground for the claim that the defendant was entitled to a directed verdict. The conflict of evidence clearly presented a question for the jury, and the trial court properly refused to direct a verdict. It would be useless for us to enter into any argument as to the weight of the testimony, pro and con. Bach story has its corroborating circumstances which lend support to plausible argument on either side, so far as the facts are concerned.
As ah abstract proposition of law, the instruction is fairly
It appears from the testimony of the defendant’s witnesses who, after the accident, examined the track left by defendant’s car, that the car began to turn northwesterly at a point about 15 feet south of Briney’s car, whereas the collision occurred at a considerable distance further north and about opposite the north end of Green’s car. Furthermore, the real defense of fact under the evidence was that the plaintiff herself, suddenly and without warning, ran in front of the defendant’s car, and was, therefore, guilty of contributory negligence. If the jury had found such to be the fact, tlien, under the instruction of the court, they must have defeated the plaintiff. The jury, therefore, necessarily found that the plaintiff did not so expose herself. Upon that view of the evidence, her apparent danger conclusively appeared at the time of the alleged signals. We think it clear, therefore, that the defendant suffered no prejudice from Instruction 10, even though it was technically erroneous at this point.
As to whether defendant was liable upon the doctrine of last clear chance or not, it is sufficient to say that the plaintiff has not urged liability upon that ground. While the evidence received might have lent support to such a claim, it was also admissible on quite other grounds. The testimony in the main case on the part of plaintiff showed that, after the collision, the defendant’s car had sped on for a distance of nearly 75 feet to the westerly side of the road. This circumstance tended to corroborate the plaintiff’s testimony that defendant was traveling at a high rate of speed. The defendant testified to a very low rate of speed and a good control of his ear on low gear. He also testified that, when he saw the plaintiff in front of his car, he stopped as quickly as he could, or at least that he was unable to stop sooner than he did. The later showing for the plaintiff, that his car could have been stopped within from 1 to 4 feet, if going on low gear at the rate testified to by defendant, tended to show improbability in his testimony in that regard. In other words, it tended to show that he must have been going faster than he testified.
We think there was no error in admitting the rebuttal testimony. The defendant appears to have had a fair trial. Considering the injuries of the plaintiff, the verdict of $600 was very considerate. The judgment below must, therefore,' be — Affirmed.