124 Iowa 424 | Iowa | 1904
The witnesses do not agree whether the car was going north or south. It was moving at a high rate of speed, and whether the gong was sounded at the center of the block, as was usual, was in dispute. That the jury might have found the defendant negligent does not seem to be questioned, and we think the issue as to whether plaintiff contributed to his injury by his own fault properly left to the jury. The appellant’s observations concerning his situation with reference to the team overlooks the fact that until he had turned so as to avoid it the car had not been seen. All that could be claimed for the team is that it so diverted his attention in approaching the track that he did not notice the car in time to avoid the collision. He may have been slow in turning from the team, whose driver appears to have ignored his privilege of riding on the right side of the street. At that time, if he is to he believed —7 and he is somewhat corroborated — he had no reason to apprehend the approach of a car, and if the coming of the team so absorbed his attention that, acting as a prudent man would under like circumstances, he did not notice the car in time to avoid it, he cannot he said to have been negligent.
The criticism of the seventh and eighth instructions as unduly emphasizing the claim that plaintiff’s attention was diverted by the team is without merit.
It is’manifest from this evidence that the plaintiff has been for many years what counsel have characterized him, a “ loafer.” While he may have bought and sold some hay, his account of the income derived therefrom was open to. suspicion, and, in view of the story of his past life, might have been rejected by the jury. Indeed, that body might well have found that the injury had no effect on the plaintiff’s inclination or capacity to earn money. The physician’s charge for medical attendance was $100, leaving $400 which the jury might have allowed for pain and the deformity of his hand. Dr. Ladd, who dressed the hand, testified that it “ was lacerated from the base of the little finger; cut right through, clear back. Then it was torn across the palm of the hand, around the base of the thumb, and the thumb was lying back, dislocated. Some bones were crushed ■— the metacarpal bones. * * * The second finger was crushed. Bones and ligaments were tom, and thei’e was a hole right through the hand. * * * The fingers are stiff, and the motion of the wrist is impaired. As a hand it is very nearly destroyed hy reason of this injury.” The wound was very
In view of the persistency of the jury in returning small verdicts, and the approval of the last one by the district court, this court ought not to interfere.— Aeeirmed.