
    Pauline Elenz v. Thomas Conrad, Appellant.
    Highways: duty to turn aside. One driving along a highway 1 is not bound to yield any portion of the road to let another pass; it is only to avoid a collision reasonably to be apprehended that he is required to turn aside.
    Negligence: instruction. In an action for damages resulting 2 from defendant’s negligence in passing plaintiff on a highway, liability is the same whether plaintiff’s team was standing still or moving, and an instruction submitting the issue of negligence on the theory that the team was not moving, though unsupported by the evidence, was not prejudicial error.
    
      Appeal from Dubuque District Court. — TIon. M. C. Matthews, Judge.
    Saturday, April 9, 1904.
    Judgment for damages.
    See 115 Iowa, 183.
    The defendant appeals.
    
    Affirmed.
    
      Dusted c& Michel for appellant.
    
      Matthews & Frantzen for appellee.
   Ladd, J.

No evidence concerning the happening of the accident other than that of plaintiff and her Husband was introduced. Both testified that they left Dyersville for home in the afternoon on January 6, 1899, shortly after 1 o’clock, in a light wagon drawn by two-horses, and that when out about a mile, and about one hundred feet beyond the first bridge, the team was stopped, anu he stepped hack of the seat to cover some groceries and a leaking-kerosene can. Both then heard a wagon approaching rapidly from the rear, and he immediately resumed his seat, and drove on across the second bride, and some thirty or forty feet beyond, where he attempted to turn out, but before this could be done a team and wagon passed them, and in so doing the hind wheel of the wagon struck their wagon and upset it. Precisely when plaintiff’s husband first saw the teain is not certain, but seems to have been when he was on the bridge, for he then looked back and saw the horses coming “as hard as they could run.” On cross-examination he testified he saw the team when three hundred feet back. This must have been after he had started on, for he was driving at a gait of less than four miles per hour and the other team was running. At any rate, the horses in the rear were being driven by defendant, as they claim, and there is nothing to indicate that he had lost control of them. This being true, the plaintiff and her husband, as they had the way, had the right to assume that the speed would be checked before passing them, or at least this would be done without molesting them in the free use of the highway. Certainly they were not bound to go to one side of the road when they first heard the wagon, and wait for defendant to drive past. One is not required to yield any portion of the road being used in order to let another pass him. Thompson Com. on Negligence, section 1290. Only to avoid a collision reasonably to be apprehended is he bound to turn to one side. Por all that appears, there was plenty of room for defendant to have gone by without interfering with anyone, and plaintiff’s husband had no reason to suppose he would not do so. The record conclusively exculpates her from any charge of negligence. Her husband attempted to turn to one side as soon as possible after crossing the bridge, and prior to that time there was no ground to apprehend this would be necessary to avoid injury. As it conclusively appears that plaintiff was free from negligence, imputable or otherwise, the inaccuracies in the instructions on this issue were without prejudice.

II. There was no evidence whatever that plaintiff’s team was stopping at the time of the collision. Nevertheless, the court, in the thirteenth paragraph of the charge, stated abstractly the law applicable to such a case, ¿id not differ from that defining the duties of a traveler by vehicle in attempting to pass another when in motion. But this did not involve the submission of an issue not raised to the jury. True, in the twentieth instruction the court mentioned the stopping of the team, and that it was overtaken by defendant, but, in speaking of passing, did not indicate whether the team was stopping or moving. As in either event the duty of- the defendant was precisely the same, the defendant could not have been prejudiced by these instructions. So far as the question of his negligence is concerned, it was immaterial whether plaintiff’s team had stopped or was moving at the time of the collision. As to him the issue was not other than raised by the- pleadings and evidence. The discrepancy in the statement of facts could have made no difference. If he failed to exercise ordinary care in driving past Elenz’s wagon, whether standing or moving, he is liable.

The verdict ought not to be declared excessive, and the judgment is aeeirmed.  