Plаintiff brought this action to recover damages for injuries to his person and property alleged to have resulted from a two-car collision. Defendant Arlo Forney, owner of the car driven by his son David, the other defendant, filed a counterclaim. The case was submitted to the jury which returned a verdict for defendants on рlaintiff’s claim and for plaintiff on defendant’s counterclaim. Plaintiff has appealed.
The collision occurred February 17, 1964, at 4:30 p. m., on an unnumbered county road running north and south in Ida County. It was a clear day and the road was dry. Plaintiff, driving his pickup in an easterly direction on a farm lane, entered the county road, turned to his right and proceeded in a southerly direction. The pickup was struck from the rear by a 1963 Eambler owned by defendant Arlo Forney and driven with his consent by his son, David. Visibility for both vehicles was limited by the crest of a hill 300 to 350 feet north of the farm lane. About 100 feet south of the lane, the road narrowed to a 16-foot bridge. After the pickup was struсk, it went off the right-hand or west side of the road, across a gully and hit a tree. The material facts in dispute were whether the Eambler was over the hill and in sight of the pickup when it entered the highway, whether the pickup was in the center of the road or on its right side at the time of the collision, and how far *94 south of the lane the cоllision occurred. (Plaintiff — 65' to 70') (Defendant — 18')
I. Plaintiff claims the trial court erred in refusing to submit to the jury the count of his petition based on the doctrine of res ipsa loquitur. This is a rule of evidence under which an inference of negligence is permissible when an injury is caused by an instrumentality under the exclusive control of defendant and the оccurrence is such as, in the ordinary course of things, would not happen if reasonable care had been used in the operation of such instrumentality. It is of limited scope, ordinarily to be applied sparingly and with caution and only where the facts and demands of justice make its application essential. Dоrcas v. Aikman,
In Dorcas, plaintiff sought to apply res ipsa to a situation in which her deceased was struck from the rear when he was making a turn to the right off of the highway without signaling. We affirmed the trial court’s refusal to submit the case to the jury on that theory. We feel the case is analogous to the case at bar and hold thе trial court was correct here in refusing to submit this case to the jury on res ipsa loquitur.
The driving of an automobile into the rear of another under these circumstances is evidence of excessive speed, lack of control, failure to keep a proper lookout and other acts of negligencе which were submitted to the jury. Ruud v. Grimm,
“The res ipsa rule should not be confused with the proposition that negligence, like other facts, may be proven by circumstantial evidence. Existence of circumstantial evidеnce of negligence in a particular case does not mean the res ipsa doctrine is applicable in that case. In considering the applicability of res ipsa loquitur, the question whether the particular occurrence is such as would not happen if reasonable care had been usеd rests on common experience and not at all on evidence in the particular case that tends in itself to show such occurrence was in fact the result of negligence. Eaves v. City of Ottumwa, supra, and citations at page
970
of 240 Iowa, page
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769 of 38 N.W.2d.” Shinofield v. Curtis,
In Dorcas v. Aikman, supra, we quote with, approval from 38 Am. Jur., Negligence, section 300, рage 997: “The doctrine does not apply where the agency causing the accident was not under the sole and exclusive control of the person sought to be charged with the injury. If it appears that two or more instrumentalities, only one of which was under defendant’s control, contributed to or may have contributеd to the injury the doctrine cannot be invoked.”
In none of the limited number of Iowa automobile cases in which the doctrine has been applied has there been any evidence which would indicate conduct of the plaintiff may have been a contributing factor. Schneider v. Swaney Motor Car Co.,
In Schneider v. Swanеy Motor Car Co., supra, plaintiff was struck from behind “while stopped for a traffic light”. In Ruud v. Grimm, supra, plaintiff had been stopped for a minute to a minute and one-half waiting for traffic so he could make a left-hand turn when he was struck from behind. In Savery v. Kist, supra, an unattended truck ran down hill and damaged a building. In Harvey v. Borg, supra, plaintiff was driving at a speed of 18 to 20 miles per hour on a wide street with no traffic and an unobstructed view when struck from behind.
We refused to apply the doctrine under the facts in Shinofield v. Curtis,
Common experience tells us that when an automobile is changing its position on the highway, either by turning off *96 or coming onto the hig'hway, the conduct of the operator of that car is often a contributing cause to the collision. At least a collision occurring under such circumstances is not such that one can say it would not ordinarily happen but for the negligence of defendant.
Language in Shinofield, while dealing with pedestrians, illustrates the reason we believe res ipsa is not applicable here.
“There are of course countless occurrences in which a pedestrian or person standing in part of a street devoted to vehicular traffic is struck and injured by a motor vehicle. In the ordinary сourse of things many such injuries are doubtless caused by the motorist’s negligence. Perhaps there are more occurrences of this kind where the injured person is ordinarily at least partly to blame. We think there are many such occurrences, especially at night, in which the motorist is not ordinarily negligent. * # *
“We fear plaintiff’s сounsel have mistakenly assumed that because in this particular case there is evidence defendant, who was in control of his truck, negligently caused the injury, res ipsa loquitur applies. We have tried to explain this does not follow.” Page 1362, 245 Iowa, page 471, 66 N.W.2d.
No eases have been cited in which res ipsa loquitur has been applied under similar facts and we do not believe it should be.
II. Appellant contends there is evidence David Forney,who is restricted to driving with glasses, was not wearing them at the time of the accident and this issue should have been submitted to the jury under proper instruction. We do not agree. The only evidence on this point is that of the passenger in plaintiff’s pickup truck. He testified: “I knew this boy before and he always wore glasses and I don’t recall him wearing his glasses that day.” This is specifically denied by defendant.
The driver was not observed until after the accident which was of such force as to cause substantial damage to both vehicles. Thе witness had received serious injury and became unconscious shortly after observing the driver. To submit this issue to the jury under these circumstances and on such uncertain testimony would permit them to speculate improperly on *97 this issue. The fact that a person did not have on glasses after a serious automobile accident is in and of itself no proof he did not have them on at the time of the collision.
Appellant did not allege David Forney was negligent in driving without his glasses and the court could not. properly have submitted this charge as a specification of negligence even if supported by the evidence. Perry v. Eblen,
III. Appellant contends no proper foundation was laid for the admission of the opinions of the highway patrolman and sheriff as to the point of impact. The patrolman testified he had received accident investigation training and at the date of this accident had investigated about 150 accidents. He said:
“There were marks leading from approximately the center of the road off south to the south and west side of the roadway and at the bottom of the gorge and in the direction of the marks was the pickup. We connected these marks with the pickup. At the beginning of these marks were two kind of dish marks or gouge marks or scuff marks in the road which appeared to have come from rear tires of the pickup.
“These scuff marks extended from the driveway 91 feet south to where the left front tire went off the highway. From the seuff marks or gouges and tracks, I have an opinion as to where the point of impact was between the two vehicles. And I determined that as 18 fеet south of the driveway and the right rear tire was eight feet from the west edge of the road.
“Q. Well, then, in other words, at the time of this collision the Miekelson truck was right in the center of the road and only 18 feet south of his driveway? A. Yes, sir, that is the way it was.”
The sheriff testified he had investigated 40 to 60 accidents a year for four and one-half years and that he and the patrolman investigated the facts of the accident and took measurements. He substantiated the gouge marks and tracks and testified as follows concerning the point of impact.
“From the south line of the driveway to the gouge marks was 18 feet and they were eight feet from the west side of the road. And the road just south of the bridge was 18 feet wide and continued at that width up to the driveway.
*98 “The collision occurred at the gouge marks which was 18 feet south and four feet west of Mr. Mickelson’s driveway.
“In my opinion the Mickelson vehicle would have been in the center of the road.”
A witness for plaintiff had testified he saw taillight and hеadlight glass on the west side of the road about halfway between the bridge and driveway, which would place the point of impact farther south than the testimony of the officers. The patrolman did not see any debris. The sheriff did not testify as to debris.
The trial court has considerable discretion in the admissibility of expert testimony. Long v. Gilсhrist,
IY. Appellant also objected to the admission into evidence of Exhibit 13 which was a rough plat of the scene and the measurements made by the sheriff and kept in his notebook. Under voir dire by appellant’s attorney, the sheriff testified:
“Mr. Hurst: Sheriff, is that a part of your official record that you keep in connection with all accidents!
“The witness: That is a part, yes. It’s somewhat of a hidden record that I keep for my own personal use. We do on all personal injury accidents keep a record, yes.
“It is a part of an оfficial accident report and is used in connection with accidents that we are called on.”
The path of the Forney car prior to the accident was indicated on the plat. There was no testimony in this regard. The trial court permitted the sheriff to redraw the plat eliminating this objectionable material. He then overruled an objection that it was part of the official records ,and not admissible. We agree. It is obvious the sheriff’s notes were to aid him in testifying in the event 'he is called as a witness. They were only
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his memorandums and not a part of any official document. The rough sketch showing the measurements as given in his oral testimоny was admissible to help the jury better understand the testimony. Anderson v. Elliott,
Appellant contends the court erred in permitting Exhibit 13 to go to the jury room. He cites Baker v. Zimmerman,
The second sentence is dictum because it was held there was no error in the admission of the diagram.
It does not appear any objection was made to Exhibit 13 going to the jury. The only objection was to its admissibility as part of thе official records. Appellant has not preserved any right to object now to the fact that the court permitted a properly admitted exhibit to go to the jury room. In any event this also is a matter of the trial court’s discretion which was not abused in this instance. See
Y. Apрellant contends the record affirmatively shows his car was on the road when appellee came over the crest of the hill by the driver’s own admissions. We do not agree. Driver testified: “* * * when I was half to three quarters of the way down, I noticed a truck coming out of the lane”. Appellant’s wife testified appellee driver told her: “Well, I was coming over the hill and the pickup had pulled out into the road.’ ” On cross-examination defendant driver testified he did not know whether he told her that or not.
A fact issue was raised. The most that can be said is that the inconsistent statement tends to impeach the driver’s testi *100 mony. He was nearly hysterical at the time he talked with appellant’s wife. It is understandable why he would not recall what he told her. A change of one or two words in the wife’s recollection of his statement would entirely change the meaning. The matter was properly before the jury as a fact question.
VI. Appellant contends the trial court unduly emphasizеd contributory negligence. It was referred to in Instructions Nos. 8, 17, 27 and 28. In Snakenberg v. Minneapolis & St. Louis Ry. Co.,
In Young v. Blue Line Storage Co.,
Wе are satisfied the instructions here contain correct statements of the law and there was no more frequent reference to contributory negligence than was necessary particularly in an action involving a counterclaim.
VII. Appellant contends the jury verdict was against the preponderancе of the evidence and that plaintiff’s case was prejudiced by the manner in which the trial court-treated the case and the many errors whieh occurred. We have held there were no errors. It is not for us to say whether the verdict was against the preponderance of the evidence, if it is supported by substantial evidence-. Mineke v. Fox,
The case is affirmed. — Affirmed.