Brown v. Lyon

• Decision Date: 03 May 1966
• Docket Number: No. 52005,52005
• Citation: 142 N.W.2d 536,258 Iowa 1216
• Parties: Patricia M. BROWN, Appellant, v. Glen Leroy LYON, Appellee.
• Court: Iowa Supreme Court

Page 536

142 N.W.2d 536

258 Iowa 1216

Patricia M. BROWN, Appellant, v. Glen Leroy LYON, Appellee.

No. 52005.

Supreme Court of Iowa.

May 3, 1966.

Robinson & Robinson and Lawyer, Lawyer & Ray, Des Moines, for appellant.

Whitfield, Musgrave, Selvy & Kelley, Des Moines, for appellee.

LARSON, Justice.

This action at law for personal injury damages sustained in a motor vehicle collision near the intersection of Eighth and Locust Streets in Des Moines, Iowa, resulted in a verdict for defendant. Plaintiff's motion for a new trial, predicated upon the giving of an alleged improper supplemental instruction and an exclusion of testimony by an investigating officer, was denied and plaintiff appeals. We hold the instruction given was improper and a new trial should have been granted.

This accident occurred during a rush hour in downtown Des Moines on Saturday, November 16, 1963, at about 4:30 P.M. Locust Street at this place is a four-lane one-way east street. There is a stop-and-go light at the intersection of Eighth and Locust Streets, and it appears the automobile directly ahead of plaintiff in the second lane of traffic from the north curb had stopped for the light. Plaintiff and defendant, directly behind her, also stopped. As the light changed, the car ahead of plaintiff made a left turn into Eighth Street and stopped to pick up some children. But due to heavy pedestrian traffic, plaintiff could only move forward a car's length and was again stopped by the light before she could enter the intersection. Defendant's automobile also moved up and the vehicles came together causing the alleged injury to plaintiff. Plaintiff testified defendant ran into her vehicle, but defendant's testimony was that she backed into his car.

At that time there were cars parked along the north curb of Locust Street with the exception of a space of about two car lengths near the intersection. On plaintiff's Exhibit 'K' a sign on the left side of the street reads, 'No Parking, Turn Lane.' There was no other evidence or testimony regarding this sign or its meaning in the record. Plaintiff and defendant were not in that lane, but were in the next or second lane to the south. Plaintiff testified that after the collision she got out pencil and paper, expecting to exchange names with defendant, but that he backed up, came alongside her in the lane to her right and, when the light changed, drove on toward the east. She took his license number, made a left turn, picked up her children, and drove home. Two days later when she discovered her injury, she called the police, who in turn sent Officer Mold to investigate. He interviewed plaintiff and, through the license number, located defendant, who also resided in Des Moines. After interrogating defendant at the factory where he worked, the officer found no evidence of 'hit and run', the original purpose of his investigation, and filed his report as a simple accident report. When plaintiff attempted to cross-examine him in the trial as to admissions against interest, an objection that they were inadmissible under section 321.271, Code of Iowa, 1962, was sustained. Appellant complains of this ruling.

After both parties had rested, the court instructed the jury and it retired to deliberate. No objections to those instructions were made by either party. Subsequently, the jury foreman submitted to the court the following question: 'If Mrs. Brown's car, being in the second lane of traffic, and not being in the lane clearly marked for 'Turn Lane,' was (this) in any way contributory negligence on her part?' The court then gave the following supplemental instruction:

'You are advised that the laws of Iowa do not prohibit a left turn from a one-way street into another one-way street when the turn is made from the lane second from the left in the street from which the turn is being made where the left-hand lane is clearly marked as a turning lane. In this case the plaintiff was in such second lane from the left preparing to make a left turn. The fact that she was in such lane preparing to make a left turn, even though the lane to her left was marked as a turning lane, is not in and of itself illegal or negligent under the laws of Iowa. However, the law of Iowa further provides that local authorities in their respective jurisdictions may cause markers, buttons or signs to be placed within or adjacent to intersections and thereby require and direct that a different course of action be followed than those specified by the laws of the State of Iowa by vehicles turning at an intersection and when markers, buttons or signs are so placed, no driver of a vehicle shall turn a vehicle at an intersection other than is directed and required by such markers, buttons or signs. You may consider whether or not under all of the circumstances the fact that such a turn was contemplated and the movements made by the plaintiff were those of a reasonably prudent person under the circumstances. It is for the jury to determine whether or not the action of the plaintiff, under these circumstances, in any was contributed to the accident and the ensuing injury and damages.'

Apparently this instruction had not been submitted to counsel before being given, but in her motion for a new trial plaintiff complained of its propriety, as well as the rejection of the officer's testimony.

I. While the jury is deliberating, the court may in its discretion further instruct the jury. Rule 197, Rules of Civil Procedure, states: 'While the jury is deliberating, the court may in its discretion further instruct the jury, in the presence of or after notice to counsel. Such instruction shall be in writing, be filed as other instructions in the case, and be a part of the record and any objections thereto shall be made in a motion for a new trial.' Such instructions, of course, are to be governed by the same rules applicable to the giving of instructions prior to jury deliberation. 53 Am.Jur., Trial, § 948.

While it does not appear this additional instruction was given in the presence of or after notice to counsel, no issue is raised thereon and we do not concern ourselves with that point here. It does appear plaintiff in her motion raised proper and specific objections to the instruction as given, and its propriety is the vital issue to be considered in determining whether the trial court abused its discretion in refusing to grant a new trial thereon. While considerable discretion is lodged in the trial court in granting such a motion, if reversible error appears in the instruction given, it would clearly be an abuse of court discretion to refuse such a motion. That we think is the situation here.

We considered a similar question in the recent case of Clubb v. Osborn, 256 Iowa 1154, 1160, 130 N.W.2d 648, 652, where the trial court sustained a motion for a new trial based upon an alleged instructional error. We enumerated therein basic propositions that should be considered in matters of this kind and need not repeat them here. Particularly applicable, however, is one that states, 'When the court instructs the jury upon a certain question in a case there must be some evidence upon which to base such instruction.' Wilson v. Kouri, 255 Iowa 348, 355, 122 N.W.2d 300, 304. Another is that 'It is error to submit an issue having no support in the record', citing Grimes v. Simpson Centenary College, 42 Iowa 589, 592, Bierkamp v. Beuthien, 173 Iowa 436, 438, 155 N.W. 819, Reed v. Pape, 226 Iowa 170, 173, 284 N.W. 106. In considering whether there was evidentiary support for an instruction, we of course give the evidence...