I find myself unable to agree with the majority and therefore respectfully dissent.
The first error complained of is that the court failed to give certain requested instructions, and especially in failing to embody in the court's instructions the following assumption clause:
"* * * and the defendant had a right to assume that the plaintiff would obey this law until the defendant knew or in the exercise of ordinary care he should have known otherwise."
It was the contention of the defendant, and he and all of his witnesses testified, that at no time was his car on the wrong side of the road. So before the jury could possibly have found for the plaintiff it had to find that the defendant was on the wrong side of the road. If the accident was due, as it must have been, according to the verdict of the jury, to the fact that the defendant was on the wrong side of the road, the assumption that the plaintiff would obey the law would not in any way, as I see it, have influenced the jury in arriving at the verdict it did reach, and the failure to embody this clause in the instruction *Page 25 could not in any possible manner have affected the verdict of the jury. The failure to give it was certainly without any prejudice to the defendant.
In the case of Orr v. Hart, 219 Iowa 408, 258 N.W. 84, we have a very similar proposition. This court, speaking thru the late Justice Evans, said, at page 414, 258 N.W. at page 88:
"What would it avail, therefore, but confusion, to instruct the jury that the defendant could assume that the plaintiff would commit no negligence? The defendant had the full benefit of the issue of contributory negligence, and the jury found there was none. If the requested instruction (that the defendant had a right to assume the plaintiff would do no negligent act, contributing to his own injury) had been given, it could become effective only if the jury found in fact that there was contributory negligence."
So in the case at bar, there was no prejudice in the failure of the court to give this requested instruction, because the jury found by its verdict that the facts claimed to justify the giving of this instruction did not exist. Hence the giving of this instruction could not have changed the jury's finding in this respect.
I cannot agree with the interpretation placed upon instruction No. 7 in the majority opinion. Each of plaintiff's allegations of negligence required a finding that the defendant was on the wrong side of the road. The jury was specifically told to disregard all other acts which might appear to them to constitute negligence. In instruction No. 10 the court defined negligence for the jury. Instruction No. 11 set forth substantially the meeting and passing statute, and told the jury that a failure to comply with the same was prima facie evidence of negligence. The jury found that the defendant did not exercise ordinary care because he was on the wrong side of the road. The majority rely upon the case of Muirhead v. Challis, 213 Iowa 1108, 240 N.W. 912. It seems to me that case is not in point, for it contained six different specifications of negligence, some of which were not related in any manner to the meeting and passing statute. In the case at bar all of the specifications concern the meeting and passing statute and its violations. Under the evidence the jury was fully instructed as to the rules governing defendant's conduct, and the statutory duty that he owed in *Page 26 meeting other vehicles. Under the allegations of the petition the jury was not permitted any field of speculation because it was required to find that the defendant was negligent because he was on the wrong side of the road, before finding for the plaintiff.
The majority conclude with this statement:
"We might hesitate to reverse this case on some of the matters assigned as error and discussed herein if standing alone but taken all together we believe the ends of justice will be more nearly served by granting a reversal of this case, and by having the issues more fully and carefully presented to the jury."
Again I am in disagreement. This case is clearly one for the jury; even the majority in their opinion so admit. There was a conflict — a severe conflict — in the evidence. The case was submitted to the jury and the jury found for the plaintiff. In my judgment the reversal is based upon too technical a construction of the instructions. The late Justice Weaver expressed it far better than I am able to do, when he said in the case of Elliott v. Capital City State Bank, 149 Iowa 309, 319, 320, 128 N.W. 369,372:
"We think it must be said that no set of instructions ever yet framed by a trial Court could stand the test of an appeal if the severely critical and technical tests for which appellant contends were to be adopted and enforced by us. Instructions are of necessity prepared under more or less pressure to avoid interference with the progress of the business of the term. They are addressed to jurors unskilled in law, and unversed in legal phraseology. * * * The standards by which instructions are to be judged are not those which might properly be applied to a technical treatise prepared for the use of the profession."
*Page 27I would affirm the lower court's decision.