191 Iowa 233 | Iowa | 1921
Plaintiff was seriously injured. Two ribs were broken; his fingers were cut; 64 stitches were taken in his shoulder ; his leg was broken, and, at the time of the trial, a year and a half after the injury, there was no union of the bones of his leg, which hung limp. It appears that, after the infection disappears, another operation will be necessary, and, if this is successful, his leg will be three inches short. The estimated expense of the operation to come is $1,000. The doctor’s and hospital bills were large. The evidence tends to show that he suffered a great deal. He was a young man, 17 years of age, and, at the time of his injury, was receiving about $3.50 a day. He had been working in a cement plant, and for the Sugar Beet Company. Plaintiff alleged that, on October 15, 1917, while he was riding north on Federal Avenue, in Mason City, on his motor cycle, at a speed of about 15 miles per hour, and at a distance of about 3 to 5 feet from the curb on the east side of the
Defendant answered in general denial, and alleged that plaintiff, without warning, negligently drove and operated his motor cycle at a dangerous rate of speed, and at a rate in excess of that permitted by the city ordinance, namely, in excess of 15 miles per hour; and that plaintiff, so operating his machine, ran into defendant’s automobile; that plaintiff’s negligence was the cause of or contributed directly to the accident and injury complained of by plaintiff.
Plaintiff was an experienced motor cyclist. The pavement at the point of the accident was 30 feet wide. Federal Avenue is one of the principal thoroughfares of the city.
Defendant’s evidence tends to show that, as he came from the north with his Overland ear, he passed another automobile on the road north of the city, and that, at the time of the accident, that automobile was behind defendant; that a Ford car was ahead of defendant, and ahead of the Ford were a sorrel horse and wagon, going five or six miles an hour, holding the center of the street, and 25 feet or more ahead of the sorrel horse, west of it, were another horse and wagon, going along the west side of the street, about a foot from the west curb, traveling 2 or 3 miles an hour; that the Ford car turned out to the left, and passed the sorrel horse; that the Ford was 4 or 5 rods ahead of defendant; that defendant turned out to pass the sorrel horse; that, after defendant had passed, he saw the plaintiff coming, about 16 feet away; that defendant had turned to the right; that plaintiff first turned to the left, and then turned to the right, and ran against and into the rear east fender of defendant’s car. Defendant’s evidence tends to show that, prior to and at the time of the accident, he was driving at a rate of speed
The errors assigned, for the most part, are in reference to the instructions given by the court and requested instructions by the defendant which were refused.
Appellant cites the statute and Baker v. Zimmerman, 179 Iowa 272, 282; Cook v. Fogarty, 103 Iowa 500, 504. Appellee also cites, among other eases, the Cook v. Fogarty case. In the case of Baker v. Zimmerman, the court said that the instruction saying that presumption of negligence arose from the fact that defendant was driving his car on the wrong side of the highway would be correct in some circumstances, but that, without qualification, it was rightly refused in that case, where defendant was proceeding north upon the grass, and away from the traveled way, and plaintiff was proceeding along the traveled way, and if, had he continued in his course, he would not have been interfered with, then it could not well be said, as a matter of law, that defendant should be presumed to have been negligent. In that case, the refusal of the court to give a requested instruction was being considered, and it stated the rule generally, without limiting it to the situation as testified to by the opposite party.
Appellee cites the two sections of the statute before referred to, and Paragraph 1 of Section 1571-ml8, which requires the
“It is argued that plaintiff ought to have seen the car sooner, and acted more promptly, and that he might have turned to right or left, and thus insured his safety. All this is fair matter of argument, but it is not for the court to say what specific act of caution ought to have been observed. ’ ’
We have before set out some of the several instructions given by the court as to contributory negligence, and in No. 11, before set out, the court told the jury that they should take into consideration the situation of the parties at the time and place of the collision, their surroundings, and so on. This is not a case where the trial court failed to submit to the jury the question of contributory negligence. It was so submitted quite fully. Appellee cites Poole, Gillam & Co. v. Hintrager, 60 Iowa 180; Kline v. K. C., St. J. & C. B. R. Co., 50 Iowa 656, 661, to the point that, the court having covered the issues, it is not reversible error to refuse instructions as to specific items of evidence, or when the substance of the requested instruction is embodied in those given.
We discover no reversible error, and the judgment is— Affirmed.