Volume 256 — Iowa Reports

<bold>EVIDENCE: Automobile mechanic — qualifications to testify to</bold> 1 <bold>condition of brakes.</bold> An automobile mechanic of many years' experience in repairing and appraising damaged automobiles and with two years' training in mechanical work in the navy was amply qualified to testify to the adequacy of brakes on plaintiff's vehicle. <bold>EVIDENCE: Inspection of automobile brakes 40 days after</bold> 2 <bold>accident.</bold> Testimony of an automobile mechanic regarding an inspection of the brakes of plaintiff's automobile made 40 days after the accident and after the car was moved to a salvage lot was properly admitted, with its weight for the jury to determine. <bold>TRIAL: Objections to questions — must be specific.</bold> An 3 objection to a question that the evidence is incompetent, irrelevant and immaterial is insufficient to call the court's attention to the claim that it was too remote. <bold>MOTOR VEHICLES: Evidence of inadequate brakes — materiality</bold> 4 <bold>where road slippery.</bold> Question of materiality of inadequate brakes on plaintiff's<page_number>Page 714</page_number> automobile involved in an accident that occurred on a slippery road was for the jury. <bold>MOTOR VEHICLES: Speed — observed three fourths of a mile from</bold> 5 <bold>accident — remoteness — discretion of court.</bold> Testimony of a witness who observed plaintiff's automobile when it was about three fourths of a mile from the scene of the accident that it was "going fast" was admissible, the question of remoteness resting in the sound discretion of trial court, and it was not abused, particularly in view of evidence the impact of the car with the rear of defendant's truck was terrific. <bold>MOTOR VEHICLES: Collision — speed, control and lookout for</bold> 6 <bold>jury.</bold> Issues of control, speed and lack of proper lookout were for the jury in an action resulting from a collision of plaintiff's automobile with the rear of defendant's truck on a slippery, snowpacked highway. <bold>NEGLIGENCE: Proof by circumstantial evidence.</bold> Circumstantial 7 evidence may be sufficient to generate a jury question on issues of negligence. <bold>TRIAL: Motor-vehicle accident — claimed error in omission of</bold> 8 <bold>theory of concurrent negligence not preserved by specific</bold> <bold>objection.</bold> Claimed error in an instruction to the effect that plaintiff, a passenger in an automobile, could recover if the jury found defendant's negligence was the sole and proximate cause of the accident was not preserved where the objections made to the instruction included no specific mention of omission of the theory of concurrent negligence, upon which the claim of error is based. Rule 196, Rules of Civil Procedure. <bold>TRIAL: Instructions — exceptions must be specific.</bold> Exceptions 9 must be taken, both to instructions given and failure to give requested instructions, and the reasons must be specifically stated. <bold>NEW TRIAL: Interests of justice — refusal not an abuse of</bold> 10 <bold>trial court's discretion.</bold> Refusing to grant a new trial in the interests of justice after verdict for defendant in a motor-vehicle-collision action was not an abuse of trial court's discretion. LARSON, J., dissents from Division I.

<bold>SALES: Implied warranty of fitness where seller knew purpose</bold> 1 <bold>for which cattle were purchased.</bold> Where defendant knew cattle he sold<page_number>Page 836</page_number> to plaintiff were intended to be feeder cattle there was an implied warranty of fitness for the purpose — that the cattle were healthy and capable of putting on weight and making an orderly development to market condition. Section 554.16, Code of 1958. <bold>SALES: Implied warranty — disclaimer after the agreement of</bold> 2 <bold>purchase of cattle — ineffective.</bold> A disclaimer of warranty of cattle sold plaintiff, contained in a sales slip which was not delivered to plaintiff until after the cattle were received and notes and mortgage had been given for the purchase price, could not vary an implied warranty of fitness. <bold>SALES: Implied warranty — reliance of buyers of cattle on</bold> 3 <bold>their own judgment — jury question.</bold> Whether buyers of cattle relied upon their own judgment as to fitness for feeder purposes rather than upon any representation or warranty by the seller was a jury question. <bold>SALES: Implied warranty — breach — elements of damage.</bold> 4 Anything which delays normal development of cattle to market condition is an element of damage for breach of an implied warranty of fitness as feeder cattle. <bold>SALES: Implied warranty — breach — jury question as to</bold> 5 <bold>fitness of cattle for feeding purposes.</bold> Evidence that cattle purchased for feeding were not healthy and were suffering from some malady which prevented their normal development engendered a jury question as to breach of an implied warranty of fitness. <bold>SALES: Breach of implied warranty of fitness of cattle for</bold> 6 <bold>feeding — failure of proof of number affected.</bold> Where there was evidence that many of the cattle purchased by plaintiff from defendant were not normal, healthy animals when received, and the condition of all the cattle as to failure to gain weight or the number actually affected could readily have been shown, a judgment on a verdict for plaintiff was error. <bold>SALES: Implied warranty — breach — damages — drop in market</bold> 7 <bold>price erroneously submitted.</bold> Instruction in an action for breach of an implied warranty of fitness of cattle for feeding purposes which in effect compelled defendant to bear any drop in prices because of a lower market at time of sale was prejudicial error. <bold>SALES: Breach of implied warranty of cattle — elements of</bold> 8 <bold>damage.</bold> In an action for breach of implied warranty of fitness of cattle for feeding purposes the proper measure of damages is set forth in section 554.70(7), C., '58, plus special items, if shown, of veterinary services and cost of feed and labor if it appears these were wasted because of failure of the cattle to develop normally.<page_number>Page 837</page_number>