Dilliner v. Joyce

• Decision Date: 17 November 1942
• Docket Number: 46021.
• Parties: DILLINER v. JOYCE et al.
• Court: Iowa Supreme Court

6 N.W.2d 275

233 Iowa 279

DILLINER v. JOYCE et al.

No. 46021.

Supreme Court of Iowa

November 17, 1942

Appeal from District Court, Union County; Homer A. Fuller Judge.

Carr, Cox, Evans & Riley, of Des Moines, and Kenneth H. Davenport, of Creston, for appellants.

F R. Curry, O. M. Slaymaker, R. E. Killmar, and D. D Slaymaker, all of Osceola, for appellee.

MITCHELL Justice.

Madeline Dilliner commenced this action at law against Patrick H. Joyce and Luther M. Walter, Trustees of the Chicago Great Western Railroad Company, a corporation, to recover damages on account of an injury that she suffered when an automobile in which she was riding ran into the side of a Chicago Great Western train at a point north of Des Moines in Polk County, Iowa.

The defendants filed answer denying each and every material allegation. There was a trial, at which evidence was offered and at the close of the plaintiff's evidence the defendants made a motion for a directed verdict, which was overruled. The motion was renewed at the close of all of the evidence and again overruled. The jury returned a verdict in favor of the plaintiff in the amount of $3,000. Defendants being dissatisfied have appealed.

As the errors urged for reversal involve only the question of whether or not the lower court erred in overruling the motion for a directed verdict, we must examine this record with the rule in mind that the evidence is to be considered in the most favorable light for the appellee.

Joyce and Walter were Trustees at the time of the accident in question operating the Chicago Great Western Railroad Company. Madeline Dilliner was a young woman, 25 years of age. On the evening of February 10, 1940 (some places in the briefs and arguments the date is mentioned as February 10, 1941), she with her husband and her small children were intending to go to Ames to remain overnight with her mother-in-law. She and her three children got into the automobile, a 1935 Ford V-8, at her home at about 7:30 in the evening. The Great Western tracks ran catercornered two blocks north from where she lived and angled down across Broadway about a mile west of Norwoodville on a slight angle north and south. The automobile was facing the Chicago Great Western tracks and while sitting there, she heard a freight train pass on these tracks. It was not until 8:00 o'clock that they started on their journey. Her husband owned and drove the automobile and she was riding as a guest. She had no management of or control over the automobile. They drove south on 29th Street, which is a street that runs in a northerly and southerly direction, heading into the city of Des Moines. It is a gravel road. When they reached what is known as Broadway Avenue they turned west. It was better than a mile from the place they turned to where the Great Western tracks cross Broadway Avenue where the accident occurred. While the street is referred to as Broadway Avenue, apparently it is nothing but a country road. The Great Western track crosses Broadway Avenue, the road upon which appellee and her husband were riding at the time of the accident, from north to south. The track north of the crossing turns to the east and the track south of the crossing turns to the east and this makes a horseshoe curve with the crossing in the toe of the horseshoe. As they drove west along what is referred to as Broadway Avenue, which was in reality nothing but a country road, the driver of the car, who is the husband of the appellee, testified that they were listening for whistles and bells and the noise of the train as they approached the railroad crossing. That his front lights were lit and in good working order and he could see 150 or 200 feet ahead and when he was not in smoke or fog he could see around 300 feet. That his tires were in good shape. That it was hazy and foggy. That the road was on a grade up to the railroad crossing. That it was not such a grade that the lights went over the top of the railroad car but instead the lights were shining underneath the railroad car all the time until they got within 25 feet of it. That he was traveling at the rate of between 20 and 25 miles an hour. That there were ruts in the road and also ice. He testified, however, that he could not have stopped his car even if he had not slid on the ice. The evidence shows that although the driver and his wife were listening and looking all of the time, there appeared to be no obstacle ahead of them until they got within about 25 feet of the train. That the driver immediately applied the brakes which were in good condition and he slid into the side of the refrigerator car which was standing still on the railroad track. The appellee was injured and it is for those injuries that she seeks damages in this case. The collision occurred five or ten minutes after 8 o'clock and it is the claim of the appellee that the train which they ran into was the train which she heard at 7:30 when she was sitting in the car waiting for her husband at their home and that therefore there was evidence upon which the jury could have found that the train had been blocking the crossing from somewhere between 30 and 40 minutes. There is also evidence of statements claimed to be made by members of the crew as to the length of time that the train was blocking the crossing.

Both the appellee and her husband were perfectly familiar with the crossing. She testified they traveled along this same road to go to town and that she went over it three or four times a week and that her husband went over it almost every day. That she had been along there many times at night and the husband who was the driver of the car testified that he had used the crossing a great many times; in fact, he testified that he was so familiar with it that he knew what the grade of the road was and where it changed and how it went up as it approached the railroad track, and that there were ruts in it.

Appellee contends that the appellants have waived the errors assigned because in their brief and argument the assignment of error, the statement of where the erroneous ruling is to be found, is quoted from the motion made at the close of appellee's evidence, to wit, page 38, lines 6-12, and the ruling complained of, according to the appellee's brief and argument and also to the appellants' brief and argument, is found on page 40, lines 40-41. This of course is a mistake. It should be page 40, lines 30-31. This ruling was made at the end of appellee's evidence. Following this ruling the appellants offered testimony and then rested. The appellee offered rebuttal testimony. Appellants, the appellee said, do not complain in this division or any other division of their argument in regard to the ruling the trial court made at the end of the evidence overruling their motion for a directed verdict. The appellee calls our attention to the fact that we have held that if a defendant makes a motion for a directed verdict at the end of plaintiff's evidence and then when the same is overruled, he does not rely thereon but offers his own evidence, that this waives the ruling made on such motion and that it is necessary for the defendant to make a motion at the end of the evidence and rely on such motion if he wants to question the sufficiency of the evidence to sustain the verdict or again raise such question in a motion for a new trial. Commercial Credit Company v. Hazel, 214 Iowa 213, 242 N.W. 47.

The record in the case at bar shows that the appellants made a motion for a directed verdict at the close of the appellee's testimony. That they set out the specific grounds upon which they urged the court to direct a verdict in their favor. This motion was overruled. Evidence was then offered by the appellants and rebuttal evidence by the appellee. At the close of all of the evidence, the appellants renewed their motion for a directed verdict. We quote from the record:

"Mr. Evans: Comes now the defendant at the close of all of the evidence and renews the Motion that was made at the close of the plaintiff's evidence to direct a verdict in its favor, and specifically renews each ground thereof."

Thus we see that the appellants specifically renewed each and every ground of the original motion for a directed verdict. Certainly it was not necessary to clutter up the record by dictating into the same at the close of the evidence each and every one of the grounds relied upon for a directed verdict. It was necessary for the appellants to quote from the abstract at the place where the motion for directed verdict was first made because that is the only place the grounds of the motion for a directed verdict are set out and that is the place where the ruling was also set out. The mere fact that they quote from that part of the abstract it seems to us is immaterial. Appellants renewed the motion and specifically renewed each and every ground of same at the close of all of the testimony. The grounds for the directed verdict at the close of all of the evidence were automatically the same as at the time it was originally made at the close of appellee's testimony. The ruling was the same. Courts do not like to be technical. Courts should be anxious to see that technicalities are waived and all parties given a fair hearing. On this record we can come to no other conclusion but that the appellants did not waive the errors alleged and they properly protected their record.

The appellants contend that the lower court erred in overruling the first ground of their motion to direct a verdict, reading as following: "The evidence fails to disclose any negligence on the part of defendants in that the undisputed evidence shows that the train with which the car in which plaintiff was riding collided was occupying the crossing at the time...