146 Iowa 355 | Iowa | 1910
The case was once before us on a prior appeal; the opinion being found in 137 Iowa, 704. A full statement of the case is there made, and we shall not repeat it here. The opinion then filed settles some of the questions involved, and, in so far as it announces rules of law, they are fixed for the purposes of this appeal, whether right or wrong. The case was reversed because the trial court was in error in submitting the question of excessive rate of speed-; for the reason that there was no testimony in the record as then before us which justified the submission of such an issue. Upon remand this testimony was supplied or at least enough introduced to-take the case to the jury upon that issue. That opinion also approved the instructions by the trial court, and
V. Complaint is made of the second, sixth, seventh, and eighth instructions given by the court on its own motion. _ We need not set" these out in extenso. The second has reference to the burden of proof, and announces the correct rule. The sixth, seventh, and eighth had reference to the rate of speed at which the automobile was
VI. ' It i-s argued that defendant’s motion in arrest of judgment should have been sustained for the reason that plaintiff did not plead freedom from contributory negligence. This claim is based upon a misapprehension of the contents of plaintiff’s petition. Plaintiff did plead that the accident happened, without fault dr negligence on his part, and this was reiterated in all counts of the petition.
No prejudicial error appears, and the judgment must be, and it is, ■affirmed.