Aсtion for damages arising ont of a collision involving three automobiles being driven by plaintiff and defendants Sharp- and Snyder respectively.
The original action was against Sharp. On his motion, Snyder was brought into the case as a defendant to Sharp’s cross-petition. Plaintiff, by amendment to her petition, joins Snyder as a defendant. It was tried to a jury with a verdict for $1250 for plaintiff, and against each defendant. There was a verdict for defendant Snyder on Sharp’s cross-petition. The trial court granted рlaintiff a new trial as against Sharp and Snyder on the ground that the verdict was inadequate. It denied Sharp a new trial as against Snyder. Sharp and Snyder have appеaled from the judgment granting plaintiff a new trial. Sharp has appealed from the judgment denying a new trial on his cross-petition against Snyder. In effect, two distinct law actions are involved in this appeal.
Since no issue of negligence or causation is presented here, a very brief factual statement will suffice. Plaintiff was driving nоrth on Highway 69, and following the Snyder car. At a point slightly north of the Des Moines city limits and opposite the Evans Hatchery, Snyder made a sudden left turn across the pavement. At the time, the Sharp ear was approaching from the north with a resulting collision involving all three cars.
I. We will first consider Sharp’s appeal from the denial оf a new trial on his cross-petition against Snyder.
(1) Error is assigned in the admission into evidence of certain photographs. They were taken some time after the accident but are conceded to fairly represent the general topography of the site of the accident as of the time thereof. It apрears, however, that certain of the pictures reveal ears, presumably posed in accord with defendant Snyder’s version of the situation. Conceding these photographs were posed, this does not render them objectionable if proper foundation has been laid as to the similarity as of the time of the accident, and we think the court could have found sufficient foundation under this record. Dice v. Johnson,
(2) Snyder was asked about the speed of thе Sharp ear. After several answers had been stricken as conclusions, he was asked: “Q. Well, what I have in mind is this: did you notice whether or not it was going á slow rate, ordinary rаte, or high rate?” (Objection that it called for a conclusion overruled.) “A. A high rate of speed.” The ruling was correct. In Payne v. Waterloo, C. P. & N. Ry. Co.,
(3) Snyder was asked: “Q. When you started across the pavement did you think it was safe to cross?” (Objected to as opinion and conclusion. Overruled.) “A. Yes, I had a very large opening.” This is claimed to be error. We think not. In Pooley v. Dutton,
(4) Appellant Sharp also asserts error in the granting of a new trial to plaintiff and denying one on the cross-petition against Snydеr on the general claim that thus a new trial is given as to only a part of the issues.
*464
This appeal does not present the questions existent where a defendant has filed a counterclaim against the plaintiff. In such cases a new trial, at least ordinarily, must be granted to neither or to both. Hayungs v. Falk,
In granting plaintiff a new trial, the trial court stated the verdict was so inadequate as to indicate that the jury became confused and neglected to follow the instructions. Appellant Sharp contends that a failure to follow instructions invalidates both verdicts. Assuming such a “failurе” here, appellant’s contention does not necessarily follow.
The trial court considered the case to consist of at least two distinct law aсtions and so instructed. No confusion or disregard of instructions pertaining to liability is claimed. On plaintiff’s cause of action the jury found liability, under the instructions... If confusion existed, it wаs in their next step, i. e., assessment of damages. On Sharp’s cross-petition the jury found na liability and hence no reason for considering the question of assessment of damages existed. Assuming justification for the granting of the new trial to plaintiff, we find nothing in the record justifying a reversal of the trial court in denying one to the cross-petitioner.
II. On the appeal of defendants Sharp and Snyder, but one error is assigned. It is, that under the record the verdict cannot be said to be inadequate.
Appellants conсede the rule to be that a trial court has wide judicial discretion in the granting of a new trial. As said in Dewey v. Chicago & N. W. R. Co.,
The accident happened May 11, 1952. Plaintiff was taken immediately to the hospital where she remained for seventeen days, for ten of which she was under sedation. She sustained multiple lacerations оf face and both knees and right ankle, a contusion of the left breast, fracture of the first rib and a mild brain concussion. As a result a lower right lobar pneumonia devеloped. At the time of the injuries she was operating a nursing home and was totally unable to work for at least three months. At the time of trial, she was not able to pеrform all of the duties required in her work. She had a hospital bill of $449.15. She was attended and examined by six physicians, the reasonable charges therefor being $258. Also submitted by thе trial court as items of damage were: clothing, $55; eyeglasses, $35; denture, $80; loss of earnings to time of trial, $1370, also pain and suffering.
The appellants argue as to the very meager proof offered as to pain and suffering and loss of earnings and say that accepting all the other items, set forth above, as the maximum figure shown by the evidence, set forth above, it left $372.85 as compensation for pain and suffering and loss of earnings. We find no exception to the instructions wherein these vаrious items are submitted to the jury and must assume the evidence was sufficient to warrant such submission. Conceding liability, as these defendants do on this appeal, the hospitаl and medical expense, at least three months of total disability, and the natural pain and suffering that must accompany such injuries, we are of the opinion, аs the trial court was, that plaintiff has not received substantial justice and that the granting of the new trial was proper.
Finding no error, the judgment of the trial court is affirmed on both appeals. — Affirmed.