Citation Numbers: 183 Iowa 858
Judges: Gaynor, Preston, Stevens, Weaver
Filed Date: 5/20/1918
Status: Precedential
Modified Date: 7/24/2022
I. Plaintiff was injured while riding a motorcycle upon Fifth Avenue at its intersection with Fourth Street in the city of Cedar Rapids. The allegations of negligence, in substance, are that defendant had removed paving block from between the rails of its track, which passes over and upon Fifth Avenue and across Fourth Street in said city, and that it had negligently permitted same to remain in a dangerous condition for an unreasonable length of time, without placing barriers, lights, or other warnings near the same, as required by the ordinance of said city. The defect was obscured by snow, and a blizzard was in progress at the time. The jury returned a verdict in favor of plaintiff for $5,000.
“I’ll ask you, Doctor, now, in what way an affected or enlarged prostate gland, one afflicted or inflamed such as you say you found in the plaintiff, will affect, if at all, the ejaculatory ducts?”
The specific objection to the question was that it assumed that the witness had testified to an. inflamed condition of the prostate gland, and the record discloses that he had
Counsel for appellant requested the court to instruct the jury as follows:
“Evidence is before you that, in some cases, death may result from a stricture of the urethra; but it is not in evidence that there is any probability this plaintiff will die of such stricture. Therefore, you will not consider, as ground for allowing or fixing the damage in this case, the chance or*861 possibility of death of plaintiff on account of his injury.”
This instruction was refused, and the court, as a part of its seventh instruction, told the jury:
“But you will not allow anything on the mere possibility of the death of plaintiff on account of his injury.”
It is argued by counsel for appellant that, had the requested instruction been given, the prejudicial effect of the above testimony would have been cured, but that the instruction given was not broad enough to do so. We are, however, quite sure that the instruction given was sufficient- • ly specific to inform the jury that no damages were to be allowed on account of the mere possibility of the death of plaintiff. /
Objections now urged to Instruction No. 5 were not made in the court below, and cannot be considered upon this appeal.
III. Complaint is made of the court’s instruction upon the weight to be given to the testimony of expert medical witnesses. No exception was taken to this instruction until after the verdict. Exceptions were, however, taken thereto in the motion for new "trial. The exceptions urged to this instruction in argument are rather technical, and based largely upon a somewhat unfortunate use of words. While there is some merit in counsel’s contention, we are quite clear that the jury could not well have misunderstood or been misled thereby, and we are not, therefore, disposed to reverse on account of the exceptions urged. Finding no reversible error in the record, the judgment of the court below is — Affirmed.