Community 4h ago. Crime and Courts Nov. Ben Visser. Iowa State Football 90m ago. John Steppe. Iowa Football 3h ago. Grace King. K Education 4h ago. Ogden K. Pilcher John Steppe. Daily News Podcast. Daily Newsletters. Log out. Daily News Podcast Daily Newsletters. More Stories. Steven Harreld and Jeremy Stiefel. Related Stories. After the impact I brought my car to a stop. I did not measure the exact distance but I would say I was around 75 to 80 feet to the north of the tractor.
Stiefel before the impact with my car. I did not sound the horn on my car. One of defendant's grounds for reversal is his claim the court erred in overruling the several motions which he filed during the trial wherein it was contended the plaintiff had failed to establish actionable negligence on the part of the defendant, and also because plaintiff's testimony showed he was guilty of contributory negligence as a matter of law.
We do not propose to again set out the testimony of the witnesses to the accident but in considering this particular ground for reversal we are justified in referring briefly to some of the testimony. I was facing north then. If, as claimed by the defendant, his car was three feet west of the threshing unit when he passed it the jury could have found, if it saw fit to do so, that the defendant's automobile was approximately five feet west of the tractor as he passed it.
It will be remembered the separator was approximately two feet wider than the tractor. However, the plaintiff testified he was still hanging onto the seat and one of his legs was only a foot away from the tractor when he was hit.
It is claimed by the defendant that the testimony of Kenneth Wright is contradictory to the plaintiff's testimony. We do not believe this to be correct. Inasmuch as it is our duty to consider the plaintiff's testimony in its most favorable light in considering the sufficiency of the evidence we can not see how the defendant, under the record, can maintain that the plaintiff was guilty of contributory negligence as a matter of law.
Marts v. John, Iowa , , 35 N. Sloan, Iowa , , N. Marvel, Iowa , , N. Spirek, Iowa , , N. The defendant maintains there was not sufficient evidence to hold him guilty of actionable negligence on the grounds pleaded by the plaintiff.
In connection with this contention the following general rules of law should be kept in mind. It was for the jury to say whether the defendant passed at a safe distance to the left of the tractor. Section Bingham, Iowa , , N. Nesbit, Iowa 14, 16, 11 N. Logan, Iowa , , N. It was also a question for the jury to say whether the defendant failed to have his car under control. Butterworth, Iowa , , 54 N. Jefferson, Iowa , , N. Ruan Transport Corp.
Under all the circumstances it was for the jury to say whether it was reasonably necessary in order to insure safe operation of the defendant's car that he sound his horn. Short v. Powell, Iowa , , N. It is admitted that the defendant did not sound his horn just prior to or at the time that he was passing the separator and the tractor.
The case of Cunnien v. Superior Iron Works Co. There the plaintiff was alighting from a wagon when struck by an automobile. Under all the circumstances disclosed in this case we are convinced the issues involved were properly submitted to the jury for determination. The defendant has referred us to numerous cases wherein we have held where the injured party left a place of safety and was injured by an approaching vehicle the plaintiff was guilty of contributory negligence as a matter of law.
We have given these cases consideration but do not believe them applicable to the facts shown in the instant case. Another ground for reversal is that the court was in error in submitting for the consideration of the jury the four specifications of negligence, to-wit: the failure of the defendant to drive his automobile at a safe distance to the left of the tractor, the claimed failure of the defendant to have his automobile under control, the failure of the defendant to sound the horn of his automobile, and the defendant's failure to keep a proper lookout.
We have heretofore discussed the question whether there was presented a jury question in connection with most of the grounds previously stated. We have concluded there was sufficient evidence to justify the submission of these issues to the jury.
The defendant has cited several cases where under the evidence a person or child darted out in front of a moving car. Such are not the facts in the present case.
Then too, in connection with this brief point presented by the defendant it is contended an issue should not be submitted where the evidence does not disclose the claimed negligence was the proximate cause of the accident. Ordinarily the question of proximate cause is for the jury. Coon v.
Rieke, Iowa , , 6 N. Lindquist v. Des Moines Union Ry. We find no merit in this claimed error presented by the defendant. The defendant claims as another ground for reversal the admission in evidence of a posed photograph purporting to be explanatory of plaintiff's testimony relative to his position as he was alighting from the tractor.
In the case of State v. Ebelsheiser, Iowa 49, 43 N. See also State v. DeZeler, Minn. In Dice v. Johnson, Iowa , , N. See annotation 27 A. And in 19 A. In Ingebretsen v. We have given consideration to the record made at the time of and immediately prior to the offer of the exhibit in question.
We hold preliminary qualification of it as relates to the plaintiff's position at the time he was alighting was made, and was illustrative of his testimony. We find no error on admitting the exhibit in evidence. The evidence shows the plaintiff was in the hospital 95 days, he had a cast on his left leg for 11 months, he was on crutches for a year or more and for a period thereafter it was necessary for him to use a cane.
The injuries to the plaintiff consisted of a fracture of the tibia and fibula. There was evidence plaintiff suffered considerable pain as he walked or endeavored to carry anything. There is further evidence that at the time of the accident the plaintiff suffered a great deal of pain and as a result of the accident received cuts on his head. We have held that the comparison of recovery in various cases is not a satisfactory manner of determining whether a verdict in a particular case is excessive.
De Toskey v. We do not propose to do so in this opinion. However, as bearing on the question whether passion and prejudice is shown in the present case we do refer to two of our recent cases.
In Miller v. McCoy Truck Lines, Inc. It was also shown the plaintiff was hospitalized for 28 days, he had a fracture of the sternum and of the manubrium. His right lung was injured and he also suffered numerous cuts and bruises which prevented him from working for approximately six months.
We affirmed this case holding there was no evidence to indicate the verdict was based on passion and prejudice and that the amount of the verdict was a question for the jury to determine. In the case of Agans v. A photo tribute can be viewed and condolences can be sent to the family by visiting David's obituary at www.
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