Whitney v. City of Sioux City

Ladd, J.

1. Evidence : conclusion of witness: rate of speed: res gestae.

*338

„ „ gestae; recital reuce‘

*337 The facts sufficiently appear in Lawrence v. Sioux City, 172 Iowa 320 . Three points not there ruled will After being precipitated into the gully, plaintiff and Dorothy Lawrence were taken to the be considered. house of St. Onge, and witnesses were asked, in substance, what Dorothy Lawrence then said in presence of persons named; and an objection as incompetent, irrelevant and immaterial and no foundation laid was sustained. Defendant offered to show that she said: “We were going too fast and I told John so”; and evidence thereof was held incompetent. What she said of the speed of the car was a mere opinion or conclusion of the deceased, and no statement of fact as to how fast the ear *338 was going. This being so, it was not admissible, even if a part of the res qestae. Dunn v. Railway, 130 Iowa 580 . But coupled with the statement, “I told him so”, a fact was stated, namely, that she told him “we were riding too fast”. But this related to some time prior to the accident, — a past occurrence, — and not to what happened in connection with the precipitation of the car into the ditch. It did not grow out of the transaction nor derive credit therefrom, but was merely the relation of a conversation which may have taken place at any time while traveling the two miles prior to reaching the gully. A mere recital of a past occurrence is not to be submitted as part of the res gestae, and there was no error in excluding this evidence. Alsever v. Railway, 115 Iowa 338 ; Chicago West. Div. Ry. Co. v. Becker, (Ill.) 21 N. E. 524 . The true theory upon which such a declaration is received in evidence is that it illustrates, explains or interprets other parts of the transaction of which it is a part; but when merely an account in part or in whole of a completed past affair, it should be excluded.

3. hiibok: exciurecord must ' show error. II. Paul Gibeau testified to having a talk with Knott about a week before the accident, and ivas asked whether Knott had then made any statements about the condition of the big lights, on the car. An objection as immaterial, irrelevant and incompetent was sustained. The alleged error may bo disposed of on the ground that there is nothing in the record tending to show the nature of the answer expected or that, if given or the statements recited, anything testified to would have had any bearing on the issues being tried. Arnold v. Livingstone, 155 Iowa 601, 604 . Knott had testified that he had not told Gibeau that his Prestolites were out of whack; but from this it was not to be inferred that the witness would testify to the contrary, or that he had had a conversation with Knott, though the latter had testified that he had not seen him. The ruling does not appear to have been prejudicial.

*339 4‘ aictY"$34oó: permanent III. The verdict returned by the jury was for $3,400, and it is contended that this was excessive. The plaintiff suffered great pain from the injury to her arm and it has proven permanent. According to the attendiug physician, “the break was about an inch or an inch and a hall above the lower end ot the bone, and instead of being broken directly across, it broke off one fragment, and the bone was more or less crushed, so there were two or three fragments at the lower end”. The radius was not broken, but bent, — that is, broken on one side, then bent. The ligaments were torn and, in consequence of the injury, a large lump still exists on the wrist, and, according to the physician, this deformity will be permanent. She suffered great pain from the injury to her arm and it was placed in a cast. Her face was badly bruised, her eye swollen shut and her nose and lips badly swollen, SO' that she was compelled to obtain food, through a tube for a few days. She was very nervous and her entire body bruised. After the swelling was reduced, her- face was black, as a result. She could neither read nor write, for some time after the injury. She was put under an anaesthetic a second time, in order to reduce the lump on her wrist, and had been unable to attend school since the injury. For some time, she was unable to sleep well and, lowing to her nervous condition, could not use her left arm for nearly a month, and has not yet recovered the full use of the right hand, and it still pains her when the weather changes. She cannot use her hand in making things and the middle finger is numb, and she cannot do work that requires a rotary motion, as beating eggs. She clerked in a store for a time at $7.50 per week, taking the place of another girl for a short time, and at another place during Christmas season. Her expectancy was thirty-five years, and it cannot be said, in view of the facts recited, that the verdict was excessive. The injury to the arm was permanent and she was shown to have suffered great pain and much inconvenience in consequence of the injury. Other errors *340 assigned are ruled by Lawrence v. Sioux City, supra. The judgment is — Affirmed.

Deemer, C. J., Gaynor and Salinger, JJ., concur.