196 Iowa 1124 | Iowa | 1923
This is a personal injury case and the primary-question involves the amount of damages awarded to plaintiff. The evidence is not in serious dispute in relation to the alleged negligence or the character and extent of the injury received by plaintiff. Plaintiff, a child of two years of age, was riding with her mother in a Ford touring car at the time of the accident. The car stopped on the highway as the supply of gasoline was exhausted. The defendant in a motor truck overtook the car, replenished it with gasoline, and observing that plaintiff’s mother had difficulty in driving the car and caring for the baby, volunteered to drive for her to the town of Graettinger. The defendant and his son at the time were transporting a load of hogs to the same town. His offer was accepted and he proceeded with the car.
It is alleged by the plaintiff that the defendant drove the car in a negligent and reckless manner and with a speed of more than 30 miles per hour and in making a sharp curve the car was overturned, resulting in damages to plaintiff.
Tt is the claim of the defendant that he drove the car in a careful and prudent manner and not to exceed 20 miles per hour,
In another instruction the statute was correctly given to the jury. It is true the instruction complained of does not follow the exact language of the statute and it is technically erroneous. It is a familiar rule that instructions must be considered and construed as a whole, and if, when so considered, it may be said that the jury was not misled, this court will not reverse because of language used in a single sentence or paragraph which standing alone does not announce correct law. A careful reading of the instructions in this case clearly discloses that no prejudice resulted. It was the province of the jury to determine the negligence of the defendant in the particulars charged and the challenged instruction refers to the time and circumstances of the accident. Whether the defendant was driving 30 miles per. hour, or less, at the time of the accident would
Plaintiff alleges that the defendant was negligently driving the automobile and with excessive speed, and that he lost control of the car causing it to swerve from one side of the road to the other until he turned it directly across the road causing it to overturn. Admitting that the statutory language should have been used in this connection, and that the language as used do'es not state the law accurately as it appears in the statute, it is clear from the whole charge that the jury ivas not misled. See, Hawkins v. Young, 137 Iowa 281; Haradon v. Sloan, 157 Iowa 608; Law v. Bryant Asphalt Pav. Co., 175 Iowa 747.
Turning to the facts for a moment, we find that the attending surgeon testifies that the injury to the child is not permanent. The fracture ivas about the juncture of the middle third and upper third of the femur or thigh. It was necessary to- use weights on the limb after the fracture was reduced, and the treatment required about 20 days. “She had the average pain of a fracture of that kind. She Avas fussy more or less all the time. Q. How long does it take for a fracture like this to entirely knit together? A.- Well, it was knit together at the time she left the house, but usually in a youngster, about eight to ten
Upon a careful review of the evidence bearing on this phase of the case we reach .the conclusion that the judgment must be further reduced and it is reduced to the sum of $2,000. If the plaintiff elects to take this amount with interest from the time of the original judgment and within 30 days from the filing of this opinion in the office of the clerk of the Supreme Court of Iowa, then this cause will stand affirmed; otherwise, reversed. —Affirmed on condition.