Burke v. Reiter, 47623

• Decision Date: 13 June 1950
• Docket Number: No. 47623,47623
• Citation: 42 N.W.2d 907,241 Iowa 807
• Parties: BURKE v. REITER et al.
• Court: Iowa Supreme Court

Page 907

42 N.W.2d 907

241 Iowa 807

BURKE v. REITER et al.

No. 47623.

Supreme Court of Iowa.

June 13, 1950.

John D. Randall and Richard F. Nazette, Cedar Rapids, for appellant.

Elliott Shuttleworth & Ingersoll, Cedar Rapids, Frank W. Less, Cascade, and Rees & Remley, Anamosa, for appellees.

SMITH, Justice.

The collision occurred Christmas Eve, 1947, on Highway 151 between Anamosa and Springville, at or near the easterly fork of the Y-intersection where highway 261, coming north from Martelle, joins 151. The location is known as Martelle Corners.

Plaintiff was traveling from Anamosa southwesterly toward Springville and Cedar Rapids; defendants in the opposite direction. Highway 151, going toward Springville, just about as it reaches this fork of the intersection, curves to the right from a southwesterly to a more westerly direction. One not taking that curve but going straight forward would leave Highway 151 and enter Highway 261 which then curved slightly to the left (southward) toward Martelle.

Contrariwise, to one coming from Springville toward Anamosa on Highway 151, the curve in 151 at this point commences farther west and is to the left from an easterly to a more northeasterly course. It seems quite likely the collision was at a point where the union of the two highways results in a wider expanse of paving before they become completely merged. Plaintiff was just entering or about to enter the curve; defendant leaving or about to leave it.

It will be seen this is not an intersection case in the usual sense, since neither party was traveling or intending to travel on Highway 261. Reference to it is principally for the purpose of identifying the location and describing the surroundings. The situation is such that one intending to continue on 151 toward Springville might, under unfavorable conditions of visibility, miss the turn and enter 261. There are no obstructions to the view in any direction however and the ground is practically level.

The cars collided between nine and ten o'clock P.M. The night is described as 'cold and crisp.' Plaintiff testified the 'visibility was good' on all the road traveled. However, there is also testimony of some 'rolling' fog.

Plaintiff, aged 31, accompanied by his wife, was driving his 1938 Ford Sedan. They were returning home to Cedar Rapids from a brief visit to Mrs. Burke's folks at Wyoming (east of Anamosa) where they had earlier gone to take Christmas presents to her children.

Defendant Edward Reiter, Jr. (19) of near Cascade, Iowa, was driving his father's (defendant Edward Reiter's) 1947 Dodge sedan. He and his young friends, Richard Kurt and Melvin O'Shea, had driven down that evening through Anamosa and Springville to Cedar Rapids to meet his sister and her husband who were coming home for a visit. Returning, the three boys were in the front seat. Mr. and Mrs. Tegeler, the sister and husband, sat behind.

There is some variance in testimony as to the respective speed of the cars and as to the dimming of lights. However, the unanimous testimony of the witnesses who arrived after the collision places both cars on the southeasterly side of the pavement, that is on the defendant's right side of the center line, as they stood after colliding. Pictures were taken before plaintiff's car was moved and after various officials and others arrived,--the sheriff of Jones County and his deputy, the marshal and deputy marshal of Anamosa, a nearby neighbor who heard the crash and hurried to the scene, and the operator of a wrecker service from Anamosa. They all (including the pictures) testified plaintiff's car was over the center line of the highway.

The testimony of the neighbor who was probably first on the scene is fairly typical: 'The Ford car (plaintiff's) would be to the left of the center line of the highway if one were proceeding from Anamosa to Springville and Cedar Rapids. When I saw the Dodge car and the Ford they were right head-on. And the Dodge car would be on the right hand side if one were proceeding from Cedar Rapids to Anamosa.'

The deputy sheriff said: 'The Ford was headed south with its right rear wheel setting approximately on the center line of what would be highway 151 in that intersection. The rest of that car was to the left of the black line. The Dodge (defendants') was facing north on its right side of the black line. The front--the left front wheel, the nearest part of that car to the center line of 151 was approximately two feet from that center line. The back end of the car, the rear, was swerved around so that it was probably four feet from that center line.'

The testimony of the marshal and deputy marshal of Anamosa, the photographer, the sheriff, and the wrecker service man, was to the same general effect. There is little contradiction of this testimony.

Although there is some confusion in plaintiff's testimony at one point, he does quite clearly claim he was not on the lefthand side of the center line 'from the time I first observed the other car coming toward me and the time I first collided with it.'

Plaintiff produced four witnesses who were in a car immediately following defendants' Dodge. One testified both plaintiff's and defendants' cars were 'astraddle of the black line' immediately after the collision. Another said 'looked to me like they hit about in the middle of the road--I wouldn't say for sure.' The first of these witnesses said on cross-examination: 'We were commenting on how good the Dodge car was being driven. * * * We just noticed that it stayed on its own side of the road. I mean, that it didn't go over the line or anything.'

The driver of this following car testified: 'Well, as we rounded into this corner, I saw the other car coming from the other direction rounding the corner, saw it headlights, and so I just more or less looked at the black line, and the car ahead was setting on my own side for sure. The next thing it looked like they were going to hit. So I looked for a place to go to miss them. * * * I could see the highway on the left hand side of me and the car ahead of me, so I turned to the left and went around them on the left hand side of me--of the pavement.' On cross-examination he said: 'I was on my side of the road until just before I saw the accident was going to happen, and the last I saw the Dodge it was on its side of the road.' This witness said he made no observation of the location of the cars after the collision. He was busy flagging down approaching cars and assisting in caring for the injured.

Plaintiff pleads as one specification of proximate negligence that defendants' car was driven with 'a light whose glaring rays were projected' into his own eyes. However he does not testify it caused him to cross the middle line nor does he admit he did cross it. The headlight issue was not even submitted to the jury.

It is impracticable to set out the testimony with any degree of fullness. The legal proposition confronting us does not require it. The court denied defendants' motion to direct. The jury returned a verdict for plaintiff. Defendants filed motion for judgment notwithstanding verdict, which was overruled, and for new trial, which was sustained. This appeal by plaintiff followed.

The trial court based the decision principally on the ground that the verdict was 'so much in conflict with the great weight of the evidence as to require the closest scrutiny in determining whether' the 'inherent power of the Court to set aside verdicts' should be exercised.

This poses the one problem confronting us on this appeal. It is for us--not to pass on the merits as to which, if either, party should recover--but to determine whether the trial court abused that discretion which the law concedes to trial courts in proper cases.

I. The determination whether to exercise this power or discretion is one of the most profoundly delicate and difficult decisions for a court to make. The usual sanctity that attaches to a jury verdict, the danger or possibility of personal prejudice or bias or sympathy in the heart of the presiding judge, the sacred rights of the parties on both sides to a fair and impartial jury trial--all these are involved. Who enters this domain of judicial procedure must indeed divest himself, so far as humanly possible, of every consideration except that of his duty under the Record to insure that each party gets one and only one fair trial.

The warning signals running through our decisions against abuse of this inherent power or discretion of trial courts were marshalled in the dissenting opinion in Re Estate of Goretska, 234 Iowa 1080, 1092 et seq., 13 N.W.2d 432.

Nevertheless the existence of the power is undoubted. Our court has always recognized it. McKay v. Thorington, 15 Iowa 25; In re Estate of Goretska, supra, and cases therein reviewed; Brunssen v. Parker, 227 Iowa 1364, 291 N.W. 535; In re Estate of Murray, 238 Iowa 112, 115, 26 N.W.2d 58.

II. The trial judge, having expressed the opinion that the verdict was 'in conflict with the great weight of the evidence,' added that he still believed there was a jury question and proceeded to examine the record for an explanation of the jury's apparent failure to weigh the evidence properly.

We think he made the proper approach to the problem and that there is sufficient ground in the Record to justify scrutiny. This is not to deny or interfere with the jury's status as the final authority in weighing evidence. It is rather a performance of the judicial duty to make sure the jury's judgment has not been swayed (unconsciously, perhaps) by some improper consideration or influence. The navigator must be sure his compass is free from diverting magnetic influence.

The fact there was sufficient conflict in the evidence to present a jury question did not preclude the court from exercising this inherent power. Bloomfield State Bank v. Seabury, 200 Iowa 37, 204 N.W. 259; Porter v. Madrid State Bank, 155 Iowa 617, 136 N.W. 666...