Plaintiff, a little girl of four, was seriously and permanently injured in a collision between a Chevrolet automobile driven by her father in which she and her mother were riding and a gasoline tank truck driven by defendant Hem-mingsen, owned by defendant Putnam. The collision occurred February 29, 1952, just before dawn, on U. S. Highway 75 about 1% miles north of Council Bluffs. The Law car was proceeding south, the truck north. The collision was near a slight curve to the east—left for the Law car, right for the truck—in the 18-foot paved roadway. The three occupants of the Chevrolet were thrown from the car and all were unconscious for a time. Plaintiff was the most seriously injured.
The first trial resulted in judgment for defendants on directed verdict which we reversed. Law v. Hemmingsen,
Principal controversy in the evidence has to do with which driver in meeting the other failed to give half the traveled way by turning to the right in violation of section 321.298, Code of 1954. Evidence for plaintiff is that the truck was partly in the Law, west, lane of traffic when the vehicles collided. Defendants’ testimony was that the Chevrolet was then partly in their, east, lane. Speed of the two vehicles and other matters, as in most cases of this kind, are also in dispute. There is substantial evidence both drivers were negligent.
I. Plaintiff first complains of the court’s refusal to instruct the jury that if the collision was caused by the concurring or combined negligence of defendant Hemmingsen and plaintiff’s father she would be entitled to recover her damages. Plaintiff requested an instruction 3 to this effect which was refused and no such instruction was given. We are clear this was error. Defendants’ argument that the instructions sufficiently cover the point cannot be accepted.
This argument is based on a statement in instruction 15, a stock definition of proximate cause, that “It does not mean the *825 sole and only cause of the injury complained of” which follows “Proximate cause means the direct, efficient, producing cause.” Also upon instruction 16 which says the negligence of the father, Richard Law, would not be imputed to plaintiff, but if it was the sole and only cause of the collision plaintiff could not recover.
Instruction 16 is one of ten instructions given by the court that were requested by defendants. Defendants’ sixth request embodies the same thought expressed in plaintiff’s third requested instruction. But this portion of defendants’ sixth request is not found in the court’s instructions although some other parts of it were given. Instruction 16 is not fairly balanced and the omission is not elsewhere supplied. The jury should have been clearly told that if the collision was proximately caused partly by Hemmingsen’s negligence as charged and partly by Mr. Law’s negligence plaintiff could recover her damages resulting therefrom. This might well have been added to instruction 16.
The question under discussion is at the very heart of the case. The jury should not have been left to guess as to the rights and obligations of the parties if the negligence of defendant-driver and Mr. Law combined to cause the collision. It could not reasonably be expected to arrive at the applicable rule of law merely from the abstract stock statement in instruction 15 that proximate cause does not mean the sole and only cause.
There is no merit to defendants’ suggestion that plaintiff’s third request improperly assumes defendant-driver was negligent. It is true the words “proximately caused by the concurring negligence” would be somewhat preferable to “the result of the concurring negligence” as used in the request. But the request was clearly sufficient to call to the court’s attention the importance of such an instruction. See Dice v. Johnson,
The Kinyon case states: “As a rule, instructions offered by counsel are not so framed that the court is justified in giving *826 tbem literally as asked, but, if tbe main thought sought to be expressed contains a pertinent legal principle which is not already fully covered by other instructions given, the court should embody it in proper words in its own charge.”
- It is the court’s duty to instruct with reasonable fullness on the issues, and a mere abstract definition of a term, having no application to the particular controversy, is insufficient. The instructions afford the only guide the jury has for correct application of the law to the facts. Gardner v. Johnson,
That each person whose negligence concurs or combines to cause injury to another is liable therefor is so well settled citation of authority is hardly necessary. Nor do defendants dispute the proposition. See, however, Newman v. Hotz,
Perhaps we should add that since plaintiff was only four when injured there is no issue of her freedom from contributory negligence.
II. Defendants apparently question the sufficiency of plaintiff’s objections to the court’s refusal of her third requested instruction as required by rule 196, Rules of Civil Procedure, Tucker v. Tolerton & Warfield Co.,
During the trial the hearing on requested instructions was held in the judge’s chambers and the official reporter made a stenotype record thereof. When the typewritten transcript of *827 the trial record was prepared, after the appeal was taken, it was discovered the record made in chambers had been lost or misplaced. Opposing counsel stipulated in writing the hearing just referred to was held, a record of it was made by the reporter and “said record containing objections and exceptions by counsel has been lost or mislaid.” Thereafter the reporter made affidavit the above record was made but he was unable to find it after diligent search.
The trial judge also made affidavit that the stenotype record of rulings on objections to instructions given and refusal of those requested by both sides, taken in chambers; had been lost or mislaid and was not available. Also that counsel for both sides “made appropriate objections * * * to all rulings on instructions given which were adverse to their respective clients and are material to the issues on appeal.”
The record on appeal contains all the above matters together with an affidavit of plaintiff’s counsel that at the hearing in chambers he or they objected to the court’s failure to give the instructions requested and any adequate instruction on the law as to the joint and several liability of defendant-driver and particularly on concurrent negligence. Opposing counsel later agreed “the foregoing shall constitute the record on appeal” and the trial judge certified it was the agreed record.
Rule 341(a), Rules of Civil Procedure, states in part, “If anything material to either party is omitted from the record on appeal by error or accident, * * * the parties by stipulation, or the trial court, either before or after the record is transmitted to the supreme court * * * may direct the correction thereof * * Rule 341 is broader than section 12857, Code of 1939 (4127, Code of 1897) which it supersedes. The statute made no provision for correction of the record by stipulation and provided for notice to the adverse party, a requirement not found in rule 341.
Kohl v. Arp,
Upon the point now considered the present case seems as strong for plaintiff as Kohl v. Arp was for those appellants. The judge’s affidavit is as effective as the ex parte order procured by Arp. As in the cited case appellées should have had notice of the affidavit the judge intended to make even though rule 341 does not require it. However, he may have felt the stipulation of counsel regarding loss of the record of objections to the refusal of requested instructions rendered such notice unnecessary. No attack has been made upon the affidavits of the judge and his reporter and, as stated, they are part of the agreed record on appeal. It is not probable defendants’ counsel would have stipulated the record, containing objections by counsel to the refusal of requested instructions, had been lost or mislaid if such objections were insufficient. Nor do we understand defendants’ counsel have any desire not to abide by their stipulation.
Like the statute it supersedes, rule 341 fixes no time within which the record may be corrected. See Dowling v. Webster County,
We have held courts of record have inherent power, independent of statute, to supply their own lost records. Gammon & Deering v. Knudson,
In Patton v. Lund,
Under the peculiar circumstances here we conclude plaintiff made sufficient objection to the refusal of her third requested instruction.
III. On defendants’ motion at the close of plaintiff’s evidence the court withdrew from jury consideration, as without evidential support, the charges of negligence against defendants except that of failure to yield to the Law car half the traveled way by turning to the right, in violation of Code section 321.298. Plaintiff’s assignment of error in this ruling must be sustained. In considering the sufficiency of evidence of the withdrawn charges of course it is our duty to view it in the light most favorable to plaintiff. Law v. Hemmingsen, supra,
The first withdrawn charge is that defendant-driver was negligent in failing to keep a proper lookout on the road ahead. There is substantial evidence that at the time of the collision defendants’ truck was partly in its left-hand lane and did not turn from its course prior to the impact. On this issue, as wrell as that of speed, testimony as to the surface and width of the highway and other conditions then existing is relevant. The 18-foot roadway and adjoining shoulders were covered with two to four inches of snow which was then falling, it was dark and both vehicles were lighted, the roadway was very slick from packed snow and ice, it was difficult if not impossible to see the center line or edges of the pavement, a truck comparable to defendants’ measured 7 feet 10 inches in width, the tank was filled with gasoline, the curve near which the collision occurred was not banked but was about level.
On the issue of lookout Pazen v. Des Moines Transportation Co.,
*830
“There was evidence * * # that defendants’ vehicle was on its left-hand side. As said in Pazen v. Des Moines Transportation Co.,
As in the case at bar, defendants in Hackman v. Beckwith, supra, relied upon Ehrhardt v. Ruan Transport Corp., supra,
Testimony of defendant-driver that he first saw the Chevrolet at a distance of about 200 feet did not justify withdrawing the issue of failure of proper lookout. His duty in this respect was not fully met, especially under the hazardous conditions then existing, by merely seeing the oncoming- car. Nor was the jury bound to believe this testimony. Much that is said in Pazen v. Des Moines Transportation Co., supra,
“The term ‘proper lookout’ means more than to look straight ahead, or more than seeing the object. It implies being watchful of the movements of his own vehicle as well as the movements of the thing seen. * * * Having glanced ahead of him and observed the approach of the other truck, the rule which required him to keep a proper lookout had not been fully met. They were meeting on an ‘S’ curve. The pavement was slippery. It was in the nighttime with the glare of the headlights. * * * A proper lookout called upon the driver * * * to ascertain where he was driving with reference to the middle of the pavement, and also with reference to the position of the other vehicle approaching, and to govern his speed in such a way as to be able to keep his machine under control and upon his proper side of the pavement, in order to avoid a collision.
“® * * Certainly if the jury believed the defendant’s driver, *831 tbe question of lookout or the question of speed bad nothing to do with the case, for according to his story he was always over on the right half of the pavement. But they were not obliged to believe him.”
Rebmann v. Heesch,
IV. On the issue of failure to reduce speed of the truck Mr. Law testifies to an estimated speed of 35 to 40 miles an hour and there was no change therein 'prior to the collision. Code section 321.285 requires driving at a careful and prudent speed not greater than is reasonable and proper, having due regard to the traffic, surface and width of the highway and other existing conditions. Section 321.288 requires a motorist to have his vehicle under control and reduce its speed to a reasonable and proper rate when approaching and traversing a curve in a highway. In his testimony defendant Hemmingsen refers to “the curve at the scene of the accident.”
In view of the dangerous driving conditions referred to in Division III the jury could properly find defendant-driver was negligent in failing to reduce his speed at the time of the collision. Whether negligence in this respect or in the matter of lookout proximately caused the collision was also a jury question. Pazen v. Des Moines Transportation Co., supra,
V. The remaining charge of negligence the court, on defendants’ motion, withdrew from the jury at the close of plaintiff’s evidence is that defendant-driver was negligent in that he had vision in one eye only and failed to operate his truck in accordance with the degree of care required of one with such *832 vision. We are inclined to agree with tbis part of tbe ruling on tbe ground tbe allegation does not constitute a proper specification of negligence.
It is well settled by our decisions and those generally that tbe degree of care required of persons wbo are blind, partially blind or bave other known infirmities is ordinary care under tbe circumstances. A person so afflicted must put forth greater effort and employ keener watchfulness than one under no such disability in order to attain the standard of care tbe law has established for all. Tbe jury must give due consideration to tbe infirmity and all other circumstances in determining whether be acted with tbe care a reasonably prudent person similarly afflicted would exercise.
See in support of these views Hill v. City of Glenwood,
Since the degree of care required of defendant-driver, even if he had vision in only one eye, was ordinary care under the circumstances the above allegation merely amounts to saying he was negligent because he failed to operate his truck with ordinary care. This was not made a proper specification of negligence by stating one circumstance connected with the operation —partial blindness.
YI. On defendants’ objection as immaterial and irrelevant the trial court refused, on the ground it was not proper cross-examination, to permit plaintiff to show by defendant-driver he had no vision in his left eye. A proffer to show the same fact by another witness was also refused. We are clear these rulings were error. The witness testified fully as to his observations at and immediately prior to the collision in an obvious attempt to show he acted carefully and the sole cause of the collision, as defendants alleged, was the negligence of the driver LawT. The proffered evidence bears on defendant-driver’s *833 ability to make tlie observations be said be made and tbe probability of bis having done so.
Further, tbe fact Hemmingsen bad no vision in bis left eye has a bearing on bis ability to maintain a proper lookout and whether be did so. It is apparent tbe range of vision of sueb a person, especially to tbe left, is at least somewhat restricted. Tbe Law car was approaching this curve in defendants’ left-hand lane. Tbe attempt to justify this ruling repeatedly emphasizes defendants’ contention there was no issue or evidence of improper lookout — a contention with which we have expressed disagreement.
We have no statutory duty of lookout. It is a common-law duty to exercise ordinary care under tbe circumstances in maintaining a lookout. Jesse v. Wemer & Wemer Co.,
Under the precedents cited in Division V, Hemmingsen’s lack of vision in bis left eye was one of the circumstances or conditions surrounding tbe collision which tbe jury was entitled to know and consider. No authority to tbe contrary has come to our attention.
Hill v. City of Glenwood, supra,
5A Am. Jur., Automobiles and Highway Traffic, section 942, page 833, states: “Evidence of any physical defect * * * existing at tbe time of tbe accident * * * is admissible.” See also Campbell v. Trate,
VII. Tbe court refused to receive in evidence photographs of plaintiff, properly identified as accurately showing her badly injured face, at a time two months and six days following tbe collision, on tbe sole ground they were immaterial because not taken immediately after she was injured. There is no suggestion tbe medical or surgical treatment of tbe injuries was not proper or skillful. Since the verdict was for defendants this ruling, of which plaintiff complains, may not be regarded as *834 prejudicial to her. The evidence bears on the extent of damage, not on right of recovery. However, we have no doubt the ruling was error which should be avoided upon another trial.
It is true trial courts ordinarily have a fair discretion whether to admit photographs in evidence. Hansen v. Franklin County,
Knox v. City of Granite Falls,
See also Birmingham Electric Co. v. McQueen,
VIII. Over proper objection by plaintiff, defendants’ witness Keller was permitted to testify to a conversation between him and plaintiff’s father as to how the collision occurred. The evidence was offered as impeachment of the witness Law by showing a prior oral statement inconsistent with his testimony. It is not contended the conversation might be shown for any other purpose.
Plaintiff’s claim of error in this ruling must be upheld since there was no attempt to lay a foundation for Keller’s testimony by calling Mr. Law’s attention to the claimed conversation. Such a foundation was necessary. In re Will of Smith,
IX. Over plaintiff’s proper objection and motion to strike which were overruled, defendants’ witness Hale, proprietor of a gasoline filling station to which defendants supplied gasoline products, testified he said to Mr. Law sometime in 1952 or 1953, “It seems to me the owner of the truck should sue him, because he had run into them.” The witness did not see the collision and knew nothing of it except what he' had been told. This evidence was incompetent and should have been stricken.
X. Other evidence of both oral and written statements by plaintiff’s witnesses was received solely for impeachment of them. The testimony was admissible only as tending to discredit the witnesses, not as substantive proof of the matters related in the statements. Hoover v. Hoover,
We have not discussed all the contentions of the parties and deem it unnecessary to do so. They have all been carefully considered. Other assigned errors are either without merit or are not likely to recur upon another trial. Because of the errors pointed out herein plaintiff is entitled to another trial—Reversed and remanded.