293 N.W. 468 | Iowa | 1940
This is the third appeal in this case. The two former appeals are Swan v. Dailey-Luce Auto Co.,
The facts are set out in the opinions in the former appeals, and the testimony was substantially the same at all the trials in the district court. In substance the facts are as given in this case as reported in
Plaintiffs in their petition alleged various grounds of negligence, of which only three were submitted to the jury: (1) Failure to have the defendants' car under control; (2) failure to keep a proper lookout; and (3) that "he drove and operated said automobile at a speed greater than permitted him to bring it to a stop within the assured clear distance ahead." On the trial no testimony was offered by the defendants. At the close of the testimony the court overruled defendants' motion for directed verdict. Verdict was returned for plaintiff as above stated.
[1] I. The defendants' first assignment of error is that the court erred in overruling defendants' motion for a directed *883
verdict on the ground that plaintiff had failed to show himself free from contributory negligence, and that the entire record showed that the plaintiff was guilty of contributory negligence as a matter of law. Defendants in support of their contention cite a large number of authorities as to general rules governing contributory negligence, and with which we agree — among them the general rule as to contributing in any way or in any degree, burden of proof, the voluntary placing of oneself in a position of danger, the scintilla rule, the rule as to when contributory negligence becomes a matter of law, and other well-known rules. But the difficulty is in the application of these rules to the record. Defendants cite as sustaining their argument as to facts, among others, Lindloff v. Duecker,
[2] II. Defendants claim that it was error for the court to submit to the jury the question of assured clear distance ahead. This question was determined in the two former appeals. In the second appeal we said (
"That this was a jury question was determined upon the former appeal of this case, wherein we said: `Under the assured clear distance statute involved in this action, it was the court's duty, under the circumstances disclosed by the evidence in this case, to have instructed the jury that, if the defendant failed to drive his car at such a speed as to enable him to bring it to a stop within the assured clear distance ahead, then the defendant was guilty of negligence as a matter of law, unless he showed a legal excuse for not complying therewith, in accordance with the meaning of "legal excuse" as hereinabove referred to.'"
Under the same, or practically the same, state of facts, we must hold that the law announced on the former appeals continues to be the law of the case for subsequent trials. See Goben v. Des Moines Asphalt Pav. Co., supra, and other cases above cited. However, in relation to the statute as to assured clear distance ahead, we call attention to the recent opinions in Janes v. Roach,
[3] III. The defendants complain of the giving of instruction No. 12, wherein the court quoted part of the statute, section 5029, Code of 1931, as follows:
"Any person driving a motor vehicle on a highway shall drive the same at a careful and prudent speed not greater than nor less than is reasonable and proper, having due regard to the traffic, surface and width of the highway and of any other conditions then existing, and no person shall drive any vehicle upon a highway at a speed greater than will permit him to bring it to a stop within the assured clear distance ahead. * * *."
Defendants insist that even if the court did not err in submitting the question of assured clear distance ahead it erred in the manner of submission in that it failed to divide the part of the statute quoted into two parts and instruct on the first half thereof. Under the familiar rule that instructions are to be read as a whole, the jury could not fail to know that the part of the statute referred to and as to which the defendants were claimed to be negligent was that which referred to the duty to stop within the assured clear distance ahead. Such was the third ground of negligence submitted in instruction No. 5, and with the two other grounds was referred to as the only grounds. Also in the first part of the instruction complained of the court specifically pointed out what plaintiff's claim was, as it did in defining the term "assured clear distance ahead" in the last part of the instruction. We do not think the jury was in any way misled or could fail to understand just what was plaintiff's claimed ground of negligence, in view of the whole instruction and other instructions given.
[4] IV. Instruction No. 13, following No. 12, in which the court refers to legal excuse which would excuse the failure to stop within the assured clear distance ahead, informs the jury that an emergency not of defendants' own making will *886
constitute such legal excuse, under the rule given in Kisling v. Thierman,
We do not find it necessary to rule upon plaintiff's objection that defendants throughout their brief and argument have failed to comply with Rule 30. Our holding, on the assignments submitted and argued, must be that we find no error requiring reversal, and the case is therefore affirmed. — Affirmed.
CHIEF JUSTICE and all JUSTICES concur.