However, the alleged error is that there was no pleading or proof of an express contract and that to submit such to the jury constitutes error. This also is true as an abstract legal proposition, Pierce v. Heusinkveld, 234 Iowa 1348, 14 N.W.2d 275; Jakeway v. Allen, 227 Iowa 1182, 290 N.W. 507, but it does not necessarily constitute prejudicial error, Wilson v. Else, 204 Iowa 857, 216 N.W. 33. Conceding that the above instructions are erroneous under the instant record, were they prejudicial to appellant?
Short v. Powell, supra. When, at the time, there is no apparent danger of a collision, then the failure to sound the horn is not a proximate cause of such collision. Jakeway v. Allen, 1940, 227 Iowa 1182, 290 N.W. 507, 510. In the present case, Klein does not claim to have sounded his horn.
III. An emergency has been defined as (1) an unforeseen combination of circumstances which calls for immediate action; (2) a perplexing contingency or complication of circumstances; (3) a sudden or unexpected occasion for action, exigency, pressing necessity. Oakes v. Peter Pan Bakers, Inc., supra, 258 Iowa 447, 458, 138 N.W.2d 93, 100, 10 A.L.R.3d 247; Young v. Hendricks, 226 Iowa 211, 215, 283 N.W. 895, 898; Harris v. Clark, 251 Iowa 807, 810, 103 N.W.2d 215, 217; Yost v. Miner, supra; Band v. Reinke, 227 Iowa 458, 288 N.W. 629; Jakeway v. Allen, 227 Iowa 1182, 290 N.W. 507; Noland v. Kyar, 228 Iowa 1006, 292 N.W. 810; Fagen Elevator v. Pfiester, 244 Iowa 633, 56 N.W.2d 577; Iowa Uniform Jury Instruction No. 5.4, Sudden Emergency. The extent and nature of an emergency is usually a fact question and, if there is substantial evidence that an emergency had developed, the jury should be instructed thereon.
Here trial court's instruction 3 told the jury: "In order for the defendant to establish his affirmative defense he must show by a preponderance or greater weight of the evidence both of the following: (1) that the plaintiff was negligent in undertaking to remove the defendant's animal from the plaintiff's property; and (2) that such negligence was a proximate cause of the injury and damage to the plaintiff's person." Incidentally, with regard to use of the term "greater weight of the evidence", see Jakeway v. Allen, 227 Iowa 1182, 1185, 290 N.W. 507. And by instruction 7 the jury was informed: "You should next consider and decide whether or not the defendant has established the affirmative defense claimed by him.
Aitchison v. Reter, 245 Iowa 1005, 1012, 64 N.W.2d 923, 927; Daly v. Illinois Central R. Co., 248 Iowa 758, 761, 80 N.W.2d 335, 337; Chenoweth v. Flynn, 251 Iowa 11, 16, 99 N.W.2d 310, 313. See also Jakeway v. Allen, 227 Iowa 1182, 1188, 290 N.W. 507. Instruction 2.8a of Uniform Jury Instructions, prepared by an able committee of the Iowa State Bar Association, states: "The term `proximate cause' means the direct, efficient and producing cause without which the injury complained of would not have occurred."
It is error for the Court to instruct the jury upon a point which is not an issue in the case as such instruction tends to confuse the jury. Nordquist v. The W.A. Simons Co., 54 Idaho 21, 28 P.2d 207; Berryman v. Dore, 43 Idaho 327, 336, 251 P. 757; Jakeway v. Allen, 227 Iowa 1182, 290 N.W. 507, 511; People v. Roe, 189 Cal. 548, 209 P. 560; 53 Am.Jur. Trial, Sections 173, 555, 574; Cobe v. Coughlin Hardware Co., 83 Kan. 522, 112 P. 115, 117. A variance between the allegations and the proof is deemed to be material where it has actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits.
We have examined with care the authorities cited by plaintiff that he was entitled to instructions as a matter of law but we do not find they sustain his position. In the following cases cited by plaintiff the holding was not in favor of the party having the burden of proof: Grover v. Neibauer, 216 Iowa 631, 247 N.W. 298; Jakeway v. Allen, 227 Iowa 1182, 290 N.W. 507; May v. Hall, 221 Iowa 609, 266 N.W. 297; Dedman v. McKinley, 238 Iowa 886, 29 N.W.2d 337; and Taylor v. Kral, 238 Iowa 1018, 29 N.W.2d 241. In the last cited case plaintiff was riding on the outside of a railroad car.
To have submitted any other would constitute error. Jakeway v. Allen, 227 Iowa 1182, 290 N.W. 507. The majority opinion says that in determining whether there is negligence in a particular case the circumstances of that case are to be considered and that the most common definition of negligence is "failure to exercise the care of an ordinarily prudent person under the circumstances."
[3, 4] It is clear that if, as we hold, there is insufficient evidence of the market value of the sheep delivered to plaintiff, the jury should not have been permitted to include in its verdict the difference between the market value of the sheep purchased and of those delivered. Upon that important issue the jury was left to speculation and conjecture. That it is error to submit to the jury an issue without substantial support in the testimony see Reed v. Willison, 245 Iowa 1066, 1073, 65 N.W.2d 440, 444; In re Estate of Hurlbut, 242 Iowa 353, 359, 360, 46 N.W.2d 66, 70; Jakeway v. Allen, 227 Iowa 1182, 1189, 1190, 290 N.W. 507, and citations; 53 Am. Jur., Trial, section 574, page 453; 88 C.J.S., Trial, section 382a and b(3). Some reference to the evidence as the jury could have found it seems desirable at this point.
Banning v. Chicago, R.I. P. Ry. Co., 89 Iowa 74, 56 N.W. 277. See, also, Towberman v. Des Moines City Ry. Co., 202 Iowa 1299, 211 N.W. 854; Hoegh v. See, 215 Iowa 733, 246 N.W. 787. Such contributory negligence need not be the sole or proximate cause of the injury, but, as stated in Jakeway v. Allen, 227 Iowa 1182, 290 N.W. 507: "It is true that such negligence must be causal." As stated in Rietveld v. Wabash R.R. Co., 129 Iowa 249, 105 N.W. 515, and quoted with approval in Towberman v. Des Moines City Ry. Co., supra: "Of course, the plaintiff's negligence must be such as contributes proximately to his injury; but, if it does so in whole or in part, in any manner or to any degree, there can be no recovery on his behalf.