I respectfully dissent. The instruction errors which are the basis of the majority opinion are, I feel, too technical to warrant reversal. Each party to a law action is entitled to an intelligent presentation of his theory of the case and all the issues that are pleaded and sustained by proof, together with the principles of law applicable to the facts of the case. I do not think the correctness of instructions should be determined by the technical tests so often put forth by the losing litigant, nor should the reviewing court be inclined to *Page 419 scan the use of words in instructions with the technical eye of a partisan lawyer. They should be examined as a whole and if they appear reasonably fair and complete, then we must think that a jury of reasonably fair-minded men and women were not misled. More than thirty-four years ago Justice Weaver, in Elliott v. Capital City State Bk., 149 Iowa 309, 319, 128 N.W. 369, 372, stated:
"* * * that no set of instructions 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." He pointed out that:" 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."
In instruction 15 the court instructed as to the third charge of negligence, that defendant failed to keep a proper lookout. In the second paragraph of the instruction the court defined the duty placed upon the defendant "to keep a proper lookout ahead in the direction of travel and to each side of said highway and see and observe and heed road conditions, such as would be observed and exercised by reasonably cautious and prudent persons under like and similar circumstances, and such as would be reasonable and proper * * *."
In the third paragraph the court commented upon the law that forbids the operation of a motor vehicle "when there are * * * such number of persons exceeding three as to obstruct the view of the driver to the front or sides of the vehicle." And in this paragraph the court stated: "And it is the duty of the driver ofa motor vehicle at all times to exercise the caution of areasonably prudent and careful person, and bring or have his car under proper control." (Italics supplied.)
This paragraph the majority hold was not reversible error under the facts of this case where there was evidence of three adult persons and a child in the front seat of defendant's truck. With that conclusion I agree, but I wish to emphasize that under the special facts of this case the majority hold it proper *Page 420 for the court, in this lookout instruction, to comment on the law forbidding a certain manner of operation, and proper for the court to then state the duty of the driver to exercise the caution of a reasonably prudent and careful person and bring or have his car under proper control.
In the fourth paragraph of the instruction the court stated to the jury that if they found from a preponderance of the evidence that defendant failed in his duty "to keep such a lookout ahead in the direction of travel, and to each side of said highway, and failed to exercise his powers of observation as a reasonably prudent and cautious person would have exercised * * *," then the jury would "have a right to find that such driver was guilty of negligence as charged in this specification of plaintiff's petition." This paragraph is also upheld by the majority opinion and I agree with the conclusion. I mention it only to show its bearing on the next and last paragraph of the instruction which the majority of the court hold erroneous.
In this last paragraph the trial court, having defined the lookout duty, and having commented on a pertinent statute relative to operation with obstructed view, and having stated that failure to observe the duty to keep proper lookout would warrant a finding of defendant's negligence, now undertakes to state that if the jury finds the defendant "kept a lookout, as hereinbefore defined," then the "defendant would not be negligent upon this [failure of proper lookout] ground." Here the court must necessarily tell the jury that if they find that defendant observed the rules laid down in the previous paragraphs, then he would not be negligent. This paragraph is as follows:
"But, if on the other hand you find from the evidence that at the time and place in question defendant kept a lookout, as hereinbefore defined for other cars or objects in the path of his motor vehicle and on said highway, and that in so doing heexercised such care and such reasonable lookout as an ordinarilycareful and prudent person would have exercised under likecircumstances, and that in so doing he exercised the caution withrespect to the operation of said motor truck that a reasonablyprudent and careful person would have exercised, and had or *Page 421 brought his truck under proper control, then the defendant would not be negligent upon this ground." (Italics supplied.)
The majority hold that the above instruction improperly conditions a finding with respect to lookout "upon the fact that appellant operated his truck as a reasonably prudent and careful person and that he brought it under proper control." The italicized portion of the instruction is the part assailed. In the part that is not in italics the jury is told that a condition is that the jury find the defendant kept a lookout as hereinbefore defined; then that, "in so doing," namely, keeping a lookout, "he exercised such care and such reasonable lookout as an ordinarily careful and prudent person would have exercised under like circumstances." This is the duty defined in the second paragraph above referred to, about which there can be no question. The next condition is: "and that in so doing," namely, keeping a lookout, "he exercised the caution with respect to the operation of said motor truck that a reasonably prudent and careful person would have exercised and had or brought his truck under proper control." This is almost the identical language of the second sentence in the third paragraph of the instruction where the majority approved the following statement as to the law with regard to driving with more than three persons in the front seat:
"And it is the duty of the driver of a motor vehicle at all times to exercise the caution of a reasonably prudent and careful person and bring or have his car under proper control."
It seems to me utterly inconsistent to approve the statement of duty contained in the third paragraph and reject as an improper condition the statement that the finding that observance of that duty is necessary before defendant can be held to be free from negligence. Section 5031.02, Code of 1939, quoted in the majority opinion, deals with driving or operating a motor vehicle. The majority hold, and I think rightly, that a comment upon this law has its proper setting in the lookout instruction for it deals with obstructions to the driver's view. Perhaps the instruction should have been amplified somewhat, but I do not feel the jury was misled. The statute places a duty not to operate an overloaded vehicle so as to obstruct the *Page 422 driver's view. It was for the jury whether it was being so operated here. The court commented on the statute and in the next sentence stated the duty was that which a reasonably prudent and careful person would exercise. I would hold the condition in the last paragraph of the instruction was not reversible error.
II. In instruction 21 the court instructed as to the duty of the plaintiff to yield one half of the traveled way to the defendant when meeting the truck. In the course of the instruction the court stated:
"* * * failure to yield one-half of the traveled way to defendant on the part of plaintiff would be prima facie evidence of negligence; and if not excused would be negligent, and if such failure on his part contributed in any way or in any degree to the injuries of which plaintiff complains, plaintiff cannot recover." (Italics supplied.)
The complaint is that by using the words "if not excused" the court submitted to the jury the issue of legal excuse which is unsupported by any record evidence.
Throughout this instruction the court is dealing with the duty of the plaintiff to yield one half of the highway in order to be relieved of the charge of contributory negligence that would defeat his right of recovery. In the first part of the instruction the court rightly told the jury that failure to so yield one half the highway on meeting the defendant would be prima facie evidence of negligence. Kisling v. Thierman, 214 Iowa 911,243 N.W. 552; Lukin v. Marvel, 219 Iowa 773, 259 N.W. 782.
In instruction 14, about which no complaint was made, the court instructed as to the defendant's similar duty to yield one half of the highway on meeting the plaintiff. Here, too, the court stated that defendant's failure to so yield "would be prima facie evidence of negligence on his part, and in the absence ofjustifiable excuse therefor, would warrant the jury in finding the defendant negligent as charged." (Italics supplied.)
It is clear that the court placed the same degree of care on both drivers with respect to yielding half the highway to *Page 423 the other. While the use of the word "excuse" is somewhat unfortunate, I do not think there was any prejudicial error. The court was obviously defining the term "prima facie evidence," which implies evidence sufficient to support a verdict establishing the fact it is adduced to prove, in the absence of other evidence by way of explanation. 23 C.J. 9, section 1735. In Lukin v. Marvel, supra, 219 Iowa 773, 783, 259 N.W. 782, 787, we held the defendant was not prejudiced by an instruction stating that if defendant failed to yield one half the road "`such violation of the law would be prima facie or presumptive evidence of negligence on the defendant's part; and in the absence of ajustifiable excuse therefor would warrant the jury in finding the defendant negligent as thus charged.'" (Italics supplied.) And in Jakeway v. Allen, 227 Iowa 1182, 1185, 290 N.W. 507, 508, we held that defendant was not prejudiced by a somewhat similar instruction which would warrant a finding of negligence if this law of the road was violated "unless it was shown by the greater weight or preponderance of the evidence that under the circumstances such offending operator was justified and in the exercise of ordinary and reasonable care." In this Jakeway case the court, speaking through Justice Hale, observed:
"But under the particular facts, there being no evidence of justification or any such issue, nor any attempt to show that the violation charged was not negligence, the instruction would not, in our opinion, in this case be prejudicial."
The two instructions, in effect, tell the jury that each driver must yield half the road to the other and a failure to so yield on the part of either will be prima facie evidence of negligence, which, in the absence of excuse, will justify a verdict against the offending party. Both drivers contended that they were at all times to the right of the center of the highway. Each charged the other with the failure to yield half of the road. Since there was no attempt on the part of either driver to excuse any alleged violation of this law of the road, then neither driver would be prejudiced by instructions that allowed verdicts of negligence against an offending driver, unless excused.
For a case much in point, see Yeary v. Holbrook, 171 Va. 266,288, 198 S.E. 441, 451, where, after the plaintiff's verdict, *Page 424 it was urged that the contributory-negligence instruction was erroneous. With reference to the claimed error, the Virginia Supreme Court stated:
"The case presents two clear-cut theories. Plaintiff's theory is that defendants' truck was traveling at an unreasonable speed on the wrong side of the curve and struck his Chevrolet coupe when it was as far as it could safely travel on the right-hand side of the highway. The defendants' theory, supported by the testimony of the witnesses introduced by them, was that the plaintiff was driving his coupe on the outside of the curve and struck their truck when it was as far on the truck's side of the highway as it could have been driven with reasonable safety. The jury had to accept one or the other of these theories, * * * Either the acts of the driver of defendants' truck were the sole proximate cause of the injury, or the acts of the driver of the coupe were the sole proximate cause. Instructions on contributory negligence, even if incorrect, could not have misled the jury."
III. Instruction 25 tells the jury what they should consider in connection with the claim for damages by reason of "permanent injury for loss of earning capacity and ability to earn." After defining the term "permanent injury," as meaning "an injury which the jury may reasonably infer from the evidence * * * will continue with the plaintiff for and during the period of his natural life," the court then amplified the definition somewhat, and closed the second paragraph of the instruction with a charge that if the jury found that the defendant's injury was permanent "then you will fix the amount of damages you will allow plaintiff for such permanent injury, and in fixing the amount of damages * * * you must exercise cool, calm, and deliberate judgment * * * taking into consideration the nature of the injury, the nature of the disfigurement, and loss of use or function of some part of his body, and such other facts or circumstances as may be shown by the evidence * * *."
No objection was made to the second paragraph but the objection is to the third paragraph of the instruction, which is as follows: *Page 425
"In this connection it has been stipulated that under the so-called mortality tables, a person of the age of plaintiff has a life expectancy of 29.62 years. These tables of mortality are based on the observed expectancy among persons in ordinary pursuits and in ordinary condition of health, and are not conclusive, but you may in determining how long plaintiff may live, take into consideration his expectancy as shown by said tables, his prior health, and all evidence which in your judgment has a bearing thereon, and determine from all of the evidence the length of time the plaintiff may live. This and the other evidence offered thereon to be considered as bearing upon the length of time plaintiff may be permanently injured, if at all, and the length of time he may suffer loss of earning capacity, or ability to earn by reason of such injury, if any such has been shown by the evidence."
The objection to the above portion of the instruction, which is upheld by the majority opinion, is that the court omitted to tell the jury they must consider his life expectancy with reference to his injured condition and not his physical condition and health prior to the accident. Such an objection seems to me to be highly technical. Defendant argues that it clearly appears from the "phraseology" of the instruction that the life expectancy "was dependent upon how long he would have lived had he not been injured." It does not so clearly appear to me. The jury is told that in fixing the amount they are to allow for permanent injury they must take into consideration the nature of the injury. The jury is told that the "so-called mortality tables [show] a person of the age of plaintiff has a life expectancy of 29.62 years," and that, though the tables are not conclusive, the jury can consider what they show, together with all other evidence having a bearing thereon, and "determine from all of the evidence the length of time the plaintiff may live." In Scott v. Chicago, R.I. P.R. Co., 160 Iowa 306, 319, 141 N.W. 1065, 1071, cited in the majority opinion, we held:
"It is proper to consider the physical condition, habits, and the like prior to the injury as bearing on the question as to whether a strong, rugged person would not be likely to live longer than a delicate person, with the same injuries. This *Page 426 matter should be considered, with his condition after being injured, in determining how long he would be likely to live in the condition he is in with his injuries."
In Hughes v. Chicago, R.I. P. Ry. Co., 150 Iowa 232, 238,129 N.W. 956, 958, the other authority on this proposition cited in the majority opinion, the court held the mortality-table instruction bad and stated that the following requested instruction should have been given:
"`Testimony has been received in evidence which tends to show that the expectancy of life of a man fifty-four years old, according to the tables of mortality, is fifteen years. These tables of mortality, however, do not necessarily apply to the plaintiff, but are based upon the observed expectancy among persons in ordinary pursuits and in ordinary condition of health, and in determining the expectancy of plaintiff you must take into consideration the condition of his health at the present time so far as shown by the evidence or so far as you have been able to observe the same, his prior habits with reference to the use of intoxicating liquors, as well as all other facts and circumstances in evidence and bearing thereon.'"
Under the instruction given the jury was told to consider the "nature of the injury" and "all the evidence" and determine how long plaintiff would live "from all the evidence." Although plaintiff's injuries were quite serious, there was no direct evidence that they were such as to shorten his life. If the jury so considered them, then the charge told the jury to conclude how long plaintiff would live from all the evidence. The charge here is quite different from the one condemned in Scott v. Chicago, R.I. P.R. Co., supra, 160 Iowa 306, 316, 141 N.W. 1065, 1069, where the court stated the plaintiff's expectancy was to be considered, "as shown by the Carlisle Life Tables, and the length of time he would have reasonably been expected to live but for the injuries of which he complains."
I would hold the instruction was not subject to the objection urged. But there is another point that I would like to bring out. Even if the instruction is subject to the interpretation that the mortality tables are to be considered with reference *Page 427 only to plaintiff's condition before the injury, I am not sure it would be incorrect. Surely it would not be incorrect if the instruction can also be interpreted to confine consideration of the mortality tables to the question of loss of earning capacity or ability to earn by reason of such injury. I think it is susceptible to that interpretation in the last sentence of the quoted paragraph. The court, in instruction 24, about which there is no objection, had instructed fully with regard to "pain and suffering, past, present and future." In instruction 24 the court is instructing with regard to permanent injuries and loss of earning capacity and ability to earn. While damages for future pain and suffering would be recoverable for only so long as plaintiff would live in his injured condition, I think damages for future loss of ability to earn, resulting from injuries, should be based on his expectancy before the injuries were suffered. Admittedly that is the rule if he were killed. If so interpreted, then neither Scott v. Chicago, R.I. P.R. Co., supra, nor Hughes v. Chicago, R.I. P. Ry. Co., supra, is in point.
IV. I agree with the criticism of the instructions mentioned in the last two divisions of the majority opinion, but since the majority do not hold reversible error occurred in the giving of these instructions, I will not comment on them. In passing, I might state that the criticism of instruction 16, contained in the last division of the majority opinion, with which I agree, does not embody the complaint of the defendant to this instruction.
I would hold that upon the whole record there is no reversible error, and therefore I would affirm the judgment.
*Page 428BLISS, J., joins in this dissent.