198 Iowa 251 | Iowa | 1924
— I. On or about the 27th day of September, 1921, appellee was the owner of a Mitchell touring car. On the evening of said day, one Powers, stepson of appellee, was driving said car upon a street in the city of Boone, when he came into collision with the automobile of appellant. Both cars received substantial damage as a result of the collision. The street upon which the accident occurred runs east and west. Appellee’s car was being driven in a westerly direction, and appellant ’s car was being driven in an easterly direction. A car belonging to a third party was parked on the south side of the street, and nearly parallel to the curb. Appellant was driving his car immediately opposite and close to the car .that was so parked, at the time the collision occurred. A large amount of evidence was introduced in regard, to the exact location and direction of the two cars at the time they came together, and in regard to the point of impact upon each of said cars, and also in regard to the speed of each car. All of these fact questions were matters for the consideration of the jury, and its finding thereon is conclusive on this appeal.
II. Complaint is made of the action of the trial court in sustaining appellee’s motion to withdraw appellant’s counterclaim from the consideration of the jury.
Upon this state of the record, the question arises as to whether or not appellee could be held liable for the negligence of Powers in operating the car. The case did not come within what is sometimes called the “family rule” with respect to the use of an automobile. The car was not purchased by appellee with any purpose or intention of its use by Powers as a member of his family. Powers had a car of his own, which he operated for his own purposes until very shortly before the accident occurred, and appellee purchased his car a long time prior thereto. The mere fact that an adult stepson, twenty-eight years of age, roomed and boarded at appellee’s home, and was engaged in
Appellant relies upon the case of Landry v. Oversen, 187 Iowa 284, and Baldwin v. Parsons, 193 Iowa 75. Both of these cases were reviewed by us in the recent case of Curry v. Bickley, 196 Iowa 827. As in the last cited case, so in the case at bar, the court did not err in refusing to submit to the jury the question of appellee’s liability merely from the fact that, because he was the owner of the car, an inference should be indulged in that it was being operated for him or under his direction, at the time of the accident.
• It is also contended that appellee is liable for the negligence of the driver of the car because of the terms of Section 12 of Chapter 275 of the Acts of the Thirty-eighth General Assembly, which provides:
“In all cases where damage is done by the car, driven by consent of the owner, by reason of the negligence of the driver, the owner of the car shall be liable for such damage.” .
We have had this statute under consideration in the case of Rowland v. Spalti, 196 Iowa 208, and also in Curry v. Bickley, supra.
The facts in the case fail to bring it within the terms and provisions of this statute. The car was not being driven “by consent of the owner,” but, under the undisputed facts, it was being driven without the owner’s knowledge or consent, and by the man Powers, for his own pleasure and convenience, and not in any way as the agent, servant, or employee of appellee. There was, therefore, no evidence of liability on the part of appellee,
III. Complaint is made of the giving of Instruction No. 6, wherein the court told the jury that the statute provides that the operator of a motor vehicle, in cities and towns, shall at all times travel on the right-hand side of the street, and that, if it found from a preponderance of the evidence that appellant did willfully, carelessly, and negligently run his automobile to the north side of the center of the street and ag’ainst the automobile of appellee, then such act would constitute negligence.
In another instruction the court correctly defined negligence and ordinary-care. Chapter 275 of the Acts of the Thirty-eighth General Assembly, Section 26, Paragraph a, provides that the operator of a motor vehicle “in cities and'towns shall at all times travel on the right-hand side of the center of the street.” The failure to obey this statute would constitute negligence per se. ' ■
Just what is meant by the “center of the street” is a matter discussed by counsel, but one which we do not deem it necessary to determine in this case. It is a matter of common knowledge that automobiles and other vehicles are generally parked on both sides of streets, and that the space available for travel is necessarily greatly lessened by the presence of such parked cars. Many other obstacles frequently occur in a portion of the street, narrowing the passageway. It is contended that the “center of the street,” as used in this statute, means the mathematical center between the curb lines; while, on the other hand, it is contended that the center of the street means the center of the “traveled portion,” or the space available for travel on the street at the time. We are not required to decide this question in this particular ease, for the reason that the court, in the instruction complained of, did not place the liability for negligence upon appellant solely because of the fact of the presence of his car (if it was so present) in whole or in part on the north side of the center of the street. The instruction was qualified by the expression, ‘ ‘ if the defendant willfully,
The instruction might well have been amplified and made more specifically applicable to the-facts of the case; but it was not erroneous as given, and no prejudice could have resulted to appellant therefrom. The jury could not have been misled thereby, nor did the. court err in refusing to give requested Instruction C.
IV". It is urged that the court erred in giving the jury Instructions 4, 7, and 8, on proximate cause.
The sole ground of negligence alleged was the claim that appellant willfully, carelessly, and negligently drove his car on the north side of the street and against the automobile of appellee. In Instruction No. 7, the court told the jury aPPellee must establish, by a preponderance of the evidence, that appellant was negligent in the particulars .charged in the petition, and must further establish by a preponderance of the evidence “that such negligence was the proximate cause of the injury and damage to the automobile of the plaintiff, or contributed as a proximate cause thereto. ’ ’
In Instruction No. 8, the court, among other things, told the jury that:
“If you fail to find that such negligence, if any there was, was a proximate cause of the injuries and damages complained*257 of 'in this case, or contributed as a proximate cause thereto, then the verdict must be for the defendant. ’1
The evident thought of the trial court was to advise the jury that the negligence of appellant, if such there be, must be a proximate cause of the injury complained of, but that it need not be the sole proximate cause of the injury complained of. "What the court doubtless had in mind was the thought that, if appellant was guilty of negligence and the driver of appellee’s car was also guilty of negligence, and the damage to appellee’s car was the result of the concurrent negligence of both parties, and the negligence of appellant "was a proximate cause of the injury, even though it was not the sole proximate cause of the injury, appellee could recover.
Complaint is made by appellant that the instructions complained of did not sufficiently explain and amplify the law relative to the case, and that, while they correctly stated abstract propositions of law, they were not complete enough to furnish an adequate guide to the jury in respect to the law pertinent to the questions involved.
The instructions as a whole are properly subject to the criticism that they did not as fully and completely explain the law pertinent to the case as would' have been desirable and advisable; but they were not erroneous and were not misleading, and they did correctly state the law applicable to the subject-matter in question. The jury could not have misunderstood them or have been misled thereby.
We find no prejudicial error in this matter that would require interference on our part. We therefore reach the conclusion that the judgment of the trial court must be — Affirmed.