*1 Hartford Fire Company, Insurance corporation, cross-appel Sturgise lee, v. al., appellants. Lefler et
No. 51683. (Reported 88) in 135 N.W.2d 797. *3 May 4, 1965.
Stephens, Millhone, Clarinda, Thornell & of & and’Nichols Thornell, Sidney, of defendants-appellants, for
Ross, Stuart, Tinley Peters, Bluffs, & of Johnson,, Council Sidney, Eaton, plaintiff, cross-appellee. & of for Eat.on Larson,.- damages brought by for J. —This action Hartford Company, Fire -Insurance called Hartford, hereinafter as sub- Bennett, Ira to recover for the assignee damage rogee and and contents caused when the was Mr. Bennett’s farmhouse house operated Lefler, by Sturgise struck a farm tractor owned-and Hill, employ while in the of Joe resulted a for verdict ' defendants. Thereafter, judgment Hartford'filed its motion notwith- and, standing alternative, in the the verdict for a new The trial. court denied the former and sustained the motion trial for a n'ew ground submitting trial on erred in issue of sud- jury. parties appeal. den Both learn Mr. Lefler, employed by From the record we Mr. Hill, operating pulling bis own farm tractor an empty wagon slope the north of a hill up highway on 59 about six miles Shenandoah, Iowa, south toward the buildings farm of'Mr. on hill, Bennett tbe east side near the crest of located in the of October Mr. driving afternoon when Hagey, James automobile, came up Highway a 1958 Ford behind bim. at point paved highway this a north-south two-lane with a seven- eight-foot shoulder sides. The weather was clear and dry. yellow There was highway a no-passing line on the you approach southbound side as the hillcrest. At this time and place Lefler was seated on tractor Mr. and was driving about per g*ear. 15 or 20 miles hour fifth Hagey Mr. up had come near behind Lefler the bottom of the second hill north house, Bennett and had shifted car gear his to second and fol- lowed at distance of a some 75 to 100 feet for a little less than'a quarter mile, when Mr. around, Lefler looked him, saw stood up tractor, then motioned to Mr. Hagey.- At the same time F. Bredensteiner, Mrs. W. driving car, approached her *4 hillcrest from the south. When she about 300 feet the spot in front the Bennett house shé saw Mr. Lefler standing making on his tractor some motion with his saw Hagey the hand/ pass pull though pull car to and then out back his own lane. pull right, She tractor saw the make a half circle across n road into garden, the Bennett’s and then into smash his house. pulled over on her She had shoulder and stopped at least 200 feet away. Hagey safely passed by
Mr. somehow the Lefler tractor, but the during maneuver and tractor this Mr. Lefler fell off sometime evidentiary up conflict There is little or then unmanned. up tractor. there Lefler stood on his Thereafter time Mr. to-the Lefler his Mrs. Bredensteiner wave arm but saw is considerable. go stay around back. She saw it was to did not know whether right said it pull the and Lefler fell off “as tractor over to the ** * just edge” at highway about the east the went across left did not know Hagey pull to his but saw pavement. She pulled did yellow line before he back. She crossed the whether he pave- across passed think the tractor before turned the he stopped shoulder and “to avoid a pulled onto the ment. She wreck.” he Lefler for some distance Hagey
Mr. testified followed “maybe feet him.” He said “knew could- 75 to 100 behind he at dis- “followed him a safe pass right then” so he n’t [Lefler] attempt pass up, until Lefler stood he did not tance.” He said go him.” hill, “motioned me to around Then looked over gear, pass, in second and when he discov- Hagey started to still on stepped gas car lie and went Bredensteiner’s ered Mrs. hap- He did not see around, clearing her feet. Avhat some in the to Lefler meantime. pened Hagey hand, signaled Mr. Lefler denied he Mr. other On the after he saw the northbound car mo- around, but said he go stay Hagey He car back. said he saw the behind Hagey tioned ways” going “long he “quite up slope.” while was him a little stood yellow up, line near the crest he saw After he reached signal him, man gave “slow down” behind coming, a ear bump hit a fell off. He pavement, off the does not pulled pavement. He got how across the recalls before he fell know he right front wheels and the rear wheel of his center he had the he right On cross-examination he said shoulder. vehicle when hit pulled bump back to the left” he might “have steering power tractor fell off. He said the turned standing up apply could not fast, and that while brakes. of failure control the issues and driv- The court submitted circumstances, speed ing a tractor at an unreasonable liability, motion for directed verdict as plaintiff’s overruled t.o objections relating to sudden emer- to instructions overruled
801 contributory plaintiff’s overruled gency negligence, and as to objection to tbe submission of tbe issue sudden contributory objection negligence, plaintiff’s and overruled emergency. of the issue of sudden In overrul- to tbe submission ing plaintiff’s judgment notwithstanding motion for the verdict trial, and granting a new the court found that the does verdict justice, testimony properly not effectuate that when the emergency existed, considered it but if showed one did occur himself, it was contributed to Lefler and that the submission issue to the was error. The problem presented, first then, fairly ap- is whether it finding trial pears the court’s that the verdict did not effectuate justice justified, and whether under the circumstances the setting court abused its discretion aside the verdict and ordering a new trial. appears
I. Whenever it has, any cause, respond truly failed to the real merits of a controversy, duty, it has to do superior failed its and when the and more com prehensive judgment of the trial court dictates the jury verdict justice failed administer substantial parties case, in the granted. a new trial should be we So said Dewey Chicago v. R. Co., 373, 378,
& N.W. and have not since said other wise; In Hollis, re Estate of 235 Iowa 16 N.W.2d 599, 602, 603; Sharp, Torrence 246 Iowa 68 N.W.2d 85, 88; Moines, Hall v. West Des 458, 470, Iowa Elings McGrevey, 740. In v. Ted Inc., 815, 822, 882, 886, in passing power the court’s grant trial, said, new we “when it is convinced that a verdict does not justice effect or that a duty” has done its the trial court maj^ independently power exercise the a new trial.
We have also said when trial court apparently exer power reasons, although may cises that those involve con flicting testimony, “appellate tribunals should be slow to inter Woodbury Company Dougherty fere.” The & Bryant Co., 161 N.W. Maynard 417. Moines, In v. Des 140 N.W. said: “But judge a trial perform, function to respect has a distinct with to such matters [granting new justice], trials the interest of we feel *6 freely it
not and as often as should be: Such court exercised as something- presiding is more than a"mere moderator over a con- contrary, test in it has no concern. On the it has distinct' á and,’ justice it is perform, function to' whenever convinced that it facts, duty under the law and the is its to has not been done grant appellate and a new trial. As an set aside the verdict court- ** * perform, somewhat different function to and we we have-a n order judge, except not interfere with the final of the trial should judge appears that such where it has abused his discre- cases arbitrary capricious’manner that, tion and such an and acted justice, effectuating he has fact instead of thwartéd it/’- holding to Many may bases a like effect in-' cited, other be Highway cases of Larew v. Iowa State eluding Comm., the recent 462, 464; 1089, 1094, 120 N.W.2d 254 Iowa Coleman v. Brower 9 730, Co., 724, 254 11 256, 260; Iowa N.W.2d Construction Burns, 255 122 Iowa N.W.2d Comer v. in them.
citations pronouncements plain these duty our
'Under to in setting court’s action uphold the trial aside a verdict on the- justice not effectuate ground does unless it is made appear its action under circumstances is an abuse of its dis justice, but tends or will not aid to thwart- it. Apparently cretion opinion plaintiff trial court here -was would’ not- recovery if denied some properly have been been not truly responded therefore had instructed the real controversy applicable facts and the merits of the law. unequivocally “that the verdict in It this found case does not justice” predicated its decision on inappro effectuate relating emergency, to sudden priate instruction which it said grounds Other of prejudicial error. the motion were over-' they support ruled; insofar as tend but of a new may them. McMaster v. trial, Hutchins, consider 514, citations; 39, 48, 120 N.W.2d Stake v. Cole, 257 N.W.2d and citations. course, Of justify upon- new trial granting of a motion, the trial not amount to need reversible court’s error error. If such’ 'were power court’s rule, the trial to correct a' justice the' failure of meaningless. Keenan, Coulthard v. be would Iowa 890,
803' Moines, citations; Hall v. West Des 597, 602, and 330, 67 Moines, Des City supra; Nicholson Thompson, Erickson 540. See N.W.2d 107. were, interposed giving objections Proper
II. relating legal excuse and sudden No. 15 instructions No. and simply told the Lefler’s No. 1 emergency. Instruction with a “sudden claim that he was confronted only Instruction No. brought by his own fault.” about relating emergency, jury, to sudden told the Other instruction that when one is confronted á sudden “You are instructed with required im upon thereof is to act the- emergency, and because sufficient moment without time to determine with pulse of the pursue,' certainty course to he is held to the same the best *7 of him accuracy judgment required as would be if had time required Under such circumstances he is act for deliberation. to ordinarily prudent person only careful would act as an when position, in suddenly placed a similar if he so acts he is not injury damage resulting from his conduct. When liable for emergency brought by about is the fault of the de the sudden to the benefit of this no- fendant, he is not entitled doctrine-and given be to this instruction.” consideration should However,- n abstractly, this instruction is correct. Considered here, incomplete' circumstances these instruction's are the confusing. given No instruction might regard' be and thus emergency, any constitute an nor were to what would references creating could be determined as made to the emer- acts n gency; in-, duty see It is the court’s that the has án understanding it to decide, of what is telligent failure to absence, fullness, even of request, reasonable instruct with Nesbit, 234 Iowa v. is error. Sanford N.W.2d 695. only guide -jury afford the instructions has for The the cor to the facts. of the law Gardner application v. Johnson, rect 231 Iowa citations. issue as to whether there was an emergency on the
Here such legal alleged excuse negligent furnish acts of Mr. itself seemed confused. Lefler, the court given
In the instruction
it
an
seems to assume there was
emergency,
placing
proof
and without
upon
burden
they
contention, simply
defendants to sustain that
told the
were
entitled to the
benefit
that doctrine when the emer
gency
brought
by
ruling
about
their fault.
In its
motion to
a new trial the
position
court takes the
there was
emergency
by defendants,
no
shown
but
was,
said if there
as a
matter of law defendants were
evidence,
at fault. In view of the
position
entirely
neither
True,
is
correct.
there would have been
parties present
if
stayed
all
their
obeyed
law,
lanes of travel and had
they
but
did not. De
fendant Lefler’s evidence was to the effect that
Hagey
he saw
approach from his rear and believed
going
he was
pass.
He
approaching
south,
saw the car
fx-omthe
and both he and Mrs.
said,
effect, they thought
Bredensteiner
there was an emer
gency
and took to the shoulders. If the
found this was an
questions
emergency,
appear.
jury may
other
The
have believed
by Hagey
pulled
pass.
was created
as he
out to
On the other
may
have
hand,
found there was
emei’geney
an
created
Hagey
pass.
Lefler when he motioned
If any of these
views
adopted, the factual
issues should have been submitted
reasonably
jury under
full
instructions. Sanford
Nesbit,
v.
supra; Kisling
Thierman,
v.
As in Sanford Nesbit appears here it the in- *8 given on the issue of sudden structions emergency merely were particular aixy without form instructions applicability to this simple plaintiff issue. objected rather Since to in- these structions, duty it became the court’s to clearly instruct as to parties of the would what conduct establish an emergency and therefor, mei’ely responsibility fix state the gener- doeti’ine speculate the to ally allow its creation and fault. said, question be it must to the vital At least of sudden emer- legal excuse, the gency given instructions inadequate were raise doubts and this could reasonable fully the under-
805 justify exercise of the court’s issue, and least the stood tlie at justice. a in to new trial the interest of discretion trial, the for a new ruling on,.plaintiff’s In motion Bred testimony plaintiff’s witnesses, Mrs. court stated: “The emergency Hagey, Mr. either that ensteiner and shoived tributed to the existed defendant emergency by Sturgise Lefler, signalling Mr. or that Hagey Mr. Lefler con to pass [*] * *. testimony any emergency, The of Mr. Lefler did not show right neither turning his tractor the came when sudden the to traveling in other Hagey was the ear nor the Bredensteiner car proper speed.” at Whether these proper than its lane of travel a justified here, but we note problem were is not our conclusions signal pass given as to the evidence both whether dispute. simply speed Hagey We ear is somewhat in given, instructions, were not proper conclude that under jury. might Mass v. this issue well have been submitted Mesic, 256 127 N.W.2d and citations. As Iowa pointed Mesic, province out in it is not the of the court Mass v. testimony, pass upon weight credibility or testimony dispute or where where there is substantial testimony, although undisputed, reasonable minds from the might question differ, the is for instruc tions. many
There are cases of this cottrt the effect emergency generally and effect that the nature of an is a fact question. Harrison, Luppes 809; v. 32 N.W.2d 603; Mitchell, Paulsen Iowa 105 N.W.2d Harris v. 215; Heidenwirth, Clark, Katcher v. N.W.2d 52. Various*definitions of “emer by Clark, this court were examined us in gency” Harris supra, general S., and the rule as stated in C. J. Negligence, approved. 252, page 1134, question It states: section “The fault in bringing one was without about an emergency whether a, jury.” simply This generally person is for means that the benefit of the rule if it clearly ap entitled knowledge dangerous had actual of a either pears situation of reasonable care could exercise have such knowledge in relation thereto. supra. act Harris v. Clark, time The *9 n 806 did not cause only those whose conduct
rule is intended to benefit Dwyer Chris- emergency. or contribute to the creation of the L. R.2d 734. tensen, D. 56 A. 76 S. erred as a Appellee III. contends the court further jury plaintiff’s law in that refusing matter of instruct of guilty subrogor, Bennett, plaintiff, Ir.a and thus the were not In No. 4 contributory negligence a matter of law. instruction plaintiff’s establish jury the court burden to told the it damages suf guilty negligence contributing was not of by it. In fered instruction No. the standard stock instruction meaning “contributory negligence” appears. (cid:127)as to the of the term Although prejudicial error, giving not is conceivable the unexplained, may these instructions have been misunderstood jury. plaintiff pleaded contributory While freedom .negligence allegation, and defendants denied the there was no reasonably plain .evidence from which it could be concluded that anyway. Surely tiff was negligent Mr. Bennett could be negligent failing path to move his house from the of this retaining tractor or to build a wall around it sufficient to re runaway (cid:127)strain might jury vehicles. The court well have told the presented the facts question, there was issue on that or should- have told the plaintiff as matter of law was not guilty contributory negligence, but say we cannot it was prejudicial given error to have However, these instructions. having fully failed to advise the of the issue, status of this light (cid:127)considered evidence, it could be that gave thereto, some consideration and that it affected the decision. least, At might the trial reasonably court conclude this circum an setting stance additional "basis for aside the grant verdict and ing a new trial. proposition
We considered a like in Low v. Hop Ford Co., kins where we said: * * * though “Even there was no obtainable direct evidence conduct, Low’s Mrs. would hesitate to reverse because of contributory Instruction negligence dealing with .[on the no eyewitness While it is time, doubtless general as a propo rule]. sition, nondisputed questions fact should not be submitted (cid:127) jury, always it is reversible error to do so. Glass v. *10 825, 833, 352; 243 N.W. Co., Hutchinson Ice Cream Iowa 165, 204 Beshey, v. N.W. International Stock Food Co. 265.” in Appellee’s
IV. trial court erred sub contention that the this mitting jury appeared defendants did cause when jury proper timely not make a for trial has no demand Appellee merit. trial discretion to contends the court no jury they no defendants a trial because made timely good citing motion rule cause, for and did not show - words, 177(a), (b) (d), Civil In other Rules of Procedure. it is claimed the revealed that the trial court facts herein trial, abused its in granting* jury discretion a and that error ground grant would be a sufficient to sustain the order court’s ing citing trial, Hutchins, supra, a new McMaster Iowa 39, 509; Spot Detector, 120 N.W.2d Hot Inc. v. Rolfes Elec Corp., tronics 102 N.W.2d and others.
The record discloses in making that defendants were late jury their for trial, being demand said demand attached to an However, amendment their answer. on November an they application hearing request filed for a late which was set for and on November 8, 1963, heard a month before the actual trial orally commenced. The court ruled then the jury, cause would be a submitted to and followed that awith formal filed on days order December three trial before commenced. 177(d), provides:
Rule R. C. P., “Notwithstanding the fail- party jury to demand in ure a a in an action which such de- might mand right, court, have been made of the in its discretion shown, motion and good parte, for cause but ex and upon such prescribes, may by terms the court order a trial any or all fully issues.” We considered this in rule Katcher Heidenwirth, supra, 254 v. Chicago, Co., Russell R. I. P. R. & 881, 884, 885, repeat and shall not those discussions here.
Suffice it to say, good we have held “for the term flexible, cause shown” as appli used this rule is and that each cation by jury or motion for trial filed late must be evaluated upon appearing, circumstances and then determined tbe circumstances
sound trial court. Under discretion discretion abuse its here, court did not we are satisfied trial by ordering' notice, hearing pursuant after held due trial in the matter. the court erred contends cross-appeal
V. In its Hartford notwithstanding the sustaining .judgment its motion only damage submit refusing verdict and agree. issue. do not We II, was evidence from out in there pointed
As Division negligent, was not jury could find defendant Lefler which a contribute to find did not jury might which the There is admission did emergency, an if one exist. creation of *11 a indirectly, that by directly or he violated Lefler, defendant hand, other duty, statutory law. On the either or under common voluntarily find Lefler there is evidence which a could to let pulled courtesy a move in order right shoulder as so line, and that he crossing yellow him Hagey pass without standing that position negligently operated tractor from a his bump dirt and he hit a he lost control fell off when shoulder. although many proposition for that
Hartford cites cases contributory negligence it is absence negligence, usual for of not they proximate law, and a matter of cause to be established as may like in factual the one at bar. be so established situations Keenan, only We of Coulthard v. shall consider the recent case supra, pedestrian a was 597, 129 N.W.2d where 890, on a by struck automobile crossed a street defendant’s as she granted as a new trial There, here, crosswalk. the trial court of defendant, after for and held there was no abuse a verdict in the in doing, its so in view of certain errors discretion including structions, was the failure instruct defendant a section 321.257 of the negligent violating as matter of law Code after had admitted the violation. pointed
In the in the that, Coulthard case was out adversary, it is absence of an admission his seldom bur party court to a who has the instruct proof den of an his claim as a matter on issue has established firmly Carr, in Ruble of This rule established law. citations; 231, and 59 N.W.2d Electric, Inc., Williams v. Stroh & Plumbing Hoefer, 465; A. R.2d L. and Markman v. 65. plaintiff’s alleged, It establish, burden here to speed Lefler’s his failure control tractor and to reduce its rate under ad reasonable the circumstances. There was no violations, mission these nor that Lefler’s unexcused acts were proximate damage. say cause of this accident and We cannot allegations as a matter law these established, were and believe the trial overruling judg court was correct the motion for ment notwithstanding the verdict.
Being satisfied that motion was properly overruled and that the trial did not its in setting court abuse discretion aside granting trial, verdict a new orders in both court be affirmed. Costs equally matters must divided.—Affirmed appeal appellants’ appellee’s cross-appeal. and on J.,C. Garfield, Moore Peterson, Snell, Stuart, JJ., concur. JJ., specially. concur Thompson,
Thornton J., Hats, sitting. (concurring J. specially) Thornton, did —Plaintiff
its motion for a new trial power invoke the broad inherent grant trial court to justice. a new trial the interests of See motion new trial, pages for a and 63 Record. ground Each therein stated comeswithin rule of Civil Rules Procedure.
Though opine the trial did court power about its broad actually granted the new trial of error in giving because sudden page instruction.-—-See 71 of Record. Plain- question objections tiff raised this its to the instruction, Rec- ord, pages 45 and and in its motion for a trial, Record, new page 62. There was no evidence to- sustain the giving thereof. requires This new of a trial.
I would confine the decision to the foregoing. J., joins special in this
Thompson, concurrence.