Connelly v. Nolte

• Decision Date: 08 January 1946
• Docket Number: 46768.
• Citation: 21 N.W.2d 311,237 Iowa 114
• Parties: CONNELLY v. NOLTE.
• Court: Iowa Supreme Court

21 N.W.2d 311

237 Iowa 114

CONNELLY v. NOLTE.

No. 46768.

Supreme Court of Iowa

January 8, 1946

Paul W. Steward, of Des Moines, and R. L. Saley, of Hampton, for appellant.

James E. Coonley, of Hampton, for appellee.

BLISS, Chief Justice.

The collision between the 1941 Ford Tudor, owned and operated by plaintiff a farmer fifty-one years old, and the gravel truck operated by defendant, occurred about 9:00 o'clock in the forenoon of July 26, 1943, on a country highway about a mile north of the town of Geneva. At this place an east and west gravel highway intersects, but does not cross, a similar highway extending north and south. The highways were not graded but each had received a coating of gravel. The traveled roadway of each was about twenty feet wide, and the fences along each were four rods apart. There was considerable traffic over the two roads at this intersection since the city of Hampton was to the north and Geneva was a short distance south. The east and west road entered the other by a 'Y', which had two well defined and well traveled arms, one of which curved northwest and merged into the north and south road for the northbound traffic, and the other arm curved to the southwest into the same highway for the southbound traffic. The traveled roadway of each arm was about thirty feet wide. The two arms and the traveled roadway of the north and south road, into which they merged, left a triangular piece of the highway between them which was very little used by traffic on either road. Each side of the triangle was about fifteen feet. The west part of the triangle was level but the east portion, partly because of the natural contour of the ground and partly, perhaps, by dirt and gravel deposited by road maintenance machinery, was elevated a foot or more. Grass grew over the whole triangle. Vehicles passing to or from either road used the arms of the 'Y.' Directly to the southeast of the intersection and abutting on the highways was a cemetery, the ground of which was somewhat higher than the surface of the road to the south of the intersection, and obscured the view of traffic on each highway to travelers approaching the intersection from the east and south, until they were about to enter the intersection. There was a slight upward grade to the intersection from both the south and east.

Just before the collision plaintiff had been driving at a speed of about 35 m.p.h. west toward the intersection, and slowed to a speed of ten or fifteen miles an hour as the entered the left arm leading to the south. He testified that he kept well to the right side of the arm, so that a vehicle entering the same arm from the south going east would have had ample room to pass him. As he headed southwest for the right-hand or west lane of the north and south road, and when he was about in the center of that road, he saw the defendant's truck approaching from the south at a speed of 50 m.p.h. clear over on the west side of that roadway. He testified that he thought the truck would pull over to the east side, and he continued to the southwest as he had been traveling, until he saw that defendant was continuing straight north with speed unabated on the west side of the road. Plaintiff then drove on to the grass shoulder on the west side of the north and south road, but the truck struck his car on the left side at about the steering wheel and knocked it a considerable distance north and west almost to the west fence. He testified that the collision was but a few feet south of the north fence line of the cemetery had it been extended west.

Defendant's version of the collision was much different. He testified that he was traveling north on the east half of the road at a speed of 30 m.p.h. and collided with the plaintiff's car which had cut the corner and was traveling south on the east half of the road, and failed to yield one-half of the way on meeting the truck.

The court submitted five grounds of negligence alleged in plaintiff's petition, namely, (1) failure of defendant to keep proper lookout; (2) failure to have his vehicle under proper control; (3) excessive speed; (4) failure to yield plaintiff the right-of-way; (5) failure to allow plaintiff one-half of the traveled way. Damages were asked in the sum of $15,357.11.

Defendant answered admitting the collision and denying all other allegations. His motion for a directed verdict at the close of all the evidence was denied. It was stipulated that the damage to plaintiff's car was $407. Plaintiff's medical expense was $50. The jury returned a verdict of $3,857.11 for plaintiff. The allowance for plaintiff's personal injuries was apparently $3,400. Defendant filed a motion for new trial containing twenty-six grounds, fourteen of which were based upon alleged misconduct of plaintiff's attorney. The motion was overruled and judgment was entered for plaintiff in the amount of the verdict.

Appellant relies upon eleven errors for reversal, seven of which are based upon misconduct of appellee's attorney.

I. It is the theory of appellant that the intersection was not a 'Y' intersection, in fact, but was the ordinary 'T' or rectangular intersection formed by the traveled roadways of each highway, and that the case should have been so submitted. He also contended that the court erred in submitting the case to the jury as a right-of-way intersection case, instead of a meeting and passing case.

It is unnecessary to detail the conflicting testimony introduced by each party. It is our conclusion that the jury was warranted in finding that the preponderance of the testimony supported and sustained the contention of the appellee, and that the collision took place substantially in the manner and at the place as testified by him. Appellant requested instructions in support of his contentions, and excepted to the court's refusal to give them, and excepted to those given in their stead. The court followed our holding in Swope v. Todd, 231 Iowa 352, 1 N.W.2d 200, and instructed that plaintiff was not negligent in using the left arm of the 'Y', as he did, in entering the north and south highway. We think the court rightly instructed the jury in these matters and find no merit in the errors assigned on these points.

II. Appellant charges appellee's counsel with misconduct in his 'diligent, repeated and thinly veiled suggestion and inference that defendant was protected by liability insurance, and the trial court erred in overruling and denying defendant's motion for mistrial based upon such misconduct.'

The examination of the jurors before twelve were accepted was not taken down by the court reporter. Plaintiff's attorney laid his files on the attorneys' table and stepped over to the jury box and began, or was about to begin, to examine a juror, when he returned to the table and began searching through his file as though looking for something. Apparently not finding it, he leaned over the table and asked in a whisper, Mr. Steward, of opposing counsel, the name of defendant's insurance carrier. Mr. Steward replied in a voice audible over the courtroom, in which members of the jury panel not yet called, and those who had been called were sitting, that 'there was no insurance company in this case, that this was a case against Ed Nolte.' That was the end of the conversation. Mr. Coonley, plaintiff's attorney, then resumed the search of the papers in his file, and found the slip of paper on which he had written the name of defendant's insurance carrier. He then examined the members of the jury and asked a number of them if they carried insurance in that company. He, of course, did not inform the jurors that the company he inquired about was the defendant's insurance carrier. Defendant made no objection to this examination and took no exception to Mr. Coonley's part in the incident just related. The jury to try the case was selected, and the plaintiff took the stand as his first witness. After he had testified at some length about matters connected with the collision, his attorney asked him: 'Did you carry any insurance to protect you for your loss here?' Before objection to the question could be completed, the witness answered: 'No, sir.' The court then sustained the objection to the question and also sustained defendant's motion to strike the answer. The witness then related that after he had received first aid at the hospital in Hampton on the day he was injured, his two boys, Alan and Ray, took him home, but they stopped at the scene of the collision. This examination of the witness then took place:

'Q. And were any measurements made by anybody at that time or distances stepped off? A. Yes, sir, we stepped them off.

'Q. Now who was there doing that at that time? A. Well, Alan and I and Ray and----

'Mr. Steward: We object to the naming of the people there as wholly irrelevant and immaterial. The Court: Overruled. The defendant excepts.

'Q. Who else was there at that time? A. Frank Dirst.

'Q. Is that the Frank Dirst who has the office across the street? A. Yes, sir.'

At the close of the direct examination of the plaintiff, Mr. Steward suggested to the court that he wished to take up a matter in the absence of the jury. Since plaintiff's attorney did not wish to make concessions as fully as desired by Mr Steward, Mr. Saley, one of defendant's attorneys, was sworn and examined. The result of this examination showed that the Frank Dirst, mentioned in plaintiff's examination, was an agent for insurance companies including those engaged in automobile and casualty insurance, and was secretary for the Farmers Mutual Insurance Company and had an office across the street from the west or main entrance to the courthouse, and had a sign on his office window advertising the fact that he was...