Ferguson-Diehl Const. Co. v. Langloss

• Decision Date: 13 January 1948
• Docket Number: 47132.
• Citation: 30 N.W.2d 320,239 Iowa 346
• Parties: FERGUSON-DIEHL CONST. CO. et al. v. LANGLOSS et al.
• Court: Iowa Supreme Court

30 N.W.2d 320

239 Iowa 346

FERGUSON-DIEHL CONST. CO. et al. v. LANGLOSS et al.

No. 47132.

Supreme Court of Iowa

January 13, 1948

Rehearing Denied March 12, 1948.

C J. Delbridge, of Sioux Falls, S. D., and Harper, Sinclair Gleysteen & Nelson, of Sioux City, for appellant.

Shull & Marshall, of Sioux City, Van Oosterhout, Te Paske &amp Rens, of Orange City, and Maurice Te Paske, of Sioux Center for appellees.

SMITH Justice.

Did the trial court err in setting aside verdicts and granting new trial? That is the sole, but difficult, question on this appeal.

The collision (November 8, 1945) was between a truck belonging to plaintiff Construction Company (hereinafter referred to as the Company) and an auto belonging to and driven by defendant Langloss, the appellant. Plaintiff George De Vries was a passenger on the truck and Robert Van Der Medide was its driver. The latter was brought into the case as defendant to the cross-petition of defendant Langloss who also counterclaimed against the Company.

It will be seen there were in fact several actions: The Company sought property damage against Langloss (herein called defendant) for injury to its truck; De Vries, by next friend, claimed damages against him for personal injuries; and defendant himself, by counter-claim and cross-petition, demanded damages for injury to his person and property from the Company and Van Der Meide, owner and driver respectively of the truck.

Issues were joined in all these actions with familiar allegations of negligence and freedom from contributory negligence. At the close of the evidence the only motion to direct was one made by defendant, in the action by the Company against him. The only ground therein urged was that the Company had not shown its freedom from contributory negligence. The motion was overruled and no error is assigned on the ruling. We must conclude all parties (except defendant) considered the evidence sufficient to go to the jury on all issues in all the actions. A reading of the Record clearly supports this conclusion.

Seven forms of verdict were submitted with the instructions: (1) For the Company in its action against defendant; (2) for defendant on his counterclaim against the Company; (3) for defendant in the Company's action against him; (4) for plaintiff De Vries in his action against defendant; (5) for defendant in the action against him by plaintiff De Vries; (6) for defendant on his cross-petition against Van Der Meide; and (7) for cross-defendant Van Der Meide on said cross-petition.

Approximately four and one-half hours after submission the jury tendered verdict No. 2 with damages assessed at $7669 in favor of defendant and against the Company. This of course would dispose of Nos. 1 and 3. After being sent back to complete its work it later returned and tendered verdict No. 5 in favor of defendant on the claim of plaintiff De Vries against him, making No. 4 unnecessary. Again the trial court sent the jury back calling attention to the fact that no decision had been made as to defendant's cross-action against Van Der Meide, driver of the Company's truck. A short time later it returned with verdict No. 6 duly signed awarding defendant damages of $7669 in his cross-action against Van Der Meide.

The net result was verdict for defendant in the original actions against him by plaintiffs and in his favor on his counterclaim against the Company and his cross-action against Van Der Meide in the sum of $7669. The verdicts were entirely consistent with each other and with a determination that Van Der Meide's negligence, and no contributing negligence of defendant, caused the collision. There was ample evidence to support such determination. The testimony of one witness will serve to demonstrate this fact.

Frank Van Dieren, a witness for plaintiffs, was driving a tractor pulling a wagon going west along the highway where the collision occurred. All witnesses agree the driving conditions were somewhat treacherous due to weather conditions. Defendant traveling the same direction passed Van Dieren just before colliding with the Company's truck coming from the west driven by Van Der Meide.

Van Dieren testified that defendant's car 'pulled onto the north side of the road in front of me so that it was on the north side of the road and heading due west and in its own lane of travel * * * within 100 feet of the front of (my) tractor. * * * After he was back on his own side of the road, he continued to go on west until the time of the collision. The point of impact must have been 250 feet to the west of my tractor. Langloss was back on his own side of the highway within 100 feet ahead of me, and then traveled 150 feet beyond that point to the point of impact. There is no question in my mind but what this accident happened on the north side of the highway and that Kenneth Langloss was definitely on his own side of the road. * * *

'At the time that Langloss went 150 feet from the point where he was fully back on his own side of the road to point of collision, the truck came at least an equal distance of 150 feet. It appeared to me that if the boys had left the brakes alone, nothing would have happened. The road was clean. It didn't appear that they applied their brakes until Langloss was over on his own side of the road.

'There was no weaving or sliding prior to that time on the part of the truck that I seen.'

This is the testimony of the only disinterested eye-witness to the collision with the possible exception of his son who was driving a truck behind his father but did not in any way contradict this testimony.

The motion for new trial and to set aside verdicts and judgment (by plaintiffs and Van Der Meide) alleged eight grounds. The trial court overruled all except the first, which urged that the amount of damages awarded appellant was 'grossly excessive and the said excessive damages appear to have been influenced by passion or prejudice * * *; that the evidence * * * does not support or sustain a verdict in the amount granted * * *; that the damages are clearly excessive * * *.'

No contention is made here by appellees that any of the other grounds overruled by the court should be invoked in support of the ruling granting a new trial. The only questions confronting us therefore are those directly posed by the trial court's ruling, viz: (1) Does the amount of the verdict indicate passion and prejudice; and (2) were the other circumstances mentioned by the court, in addition to the size of the verdict, sufficient to justify exercise by the trial court of its undoubted discretion to grant a new trial where it deems the trial was not fair.

I. In order properly to determine the significance of the $7669 verdict it becomes necessary to consider the elements of damage alleged and proved. As usual some of the elements are possible of fairly exact measurement and the evidence as to these is undisputed: Estimated total loss of net earnings for 13 weeks $1014 and partial loss for 38 weeks, $1216; hospital and doctor bills, $302.50; ambulance service $17.50; and property damage to automobile, $335. These total $2885. This leaves $4784 to cover partial, permanent disability and pain and suffering.

The difficulty of placing adequate monetary value upon pain and suffering and of estimating damage suffered by reason of partial permanent disability (estimated in the Record as 25%) is too apparent to require or justify extended discussion or citation of authority. We are not disposed by say $4700 in the instant case is of itself so excessive as to indicate passion and prejudice.

Defendant testified that when he got out of his car and attempted to walk his right leg 'buckled' and wouldn't hold his weight. 'It was very painful. I felt my knee cap and it felt like it had been pushed clear up above where it belonged.' He was helped into a truck and started for Hawarden about five miles away.

He asys: 'My knee cap was cut up pretty bad and you could see the pieces of knee cap that looked like a 'T.' * * * I had a lot of pain, and as we drove along toward Hawarden it seemed to get worse. It was a sharp pain.'

The doctor in Hawarden examined the leg and took him to Sioux City to a hospital. X-rays were taken and an operation performed under local anaesthetic. 'I suffered a sharp continual pain which seemed to be getting worse. * * * they cut into the knee and as a result of the operation I have a scar on my knee.' The knee was shown to the jury.

The leg was put in a plaster cast covering from midway between ankle and knee to halfway up on the thigh. 'The sharp pain and ache in my leg continued all of the time * * * and after my arrival at home. I was not able to walk around on my leg and it was necessary that I have help in moving about.'

At night he had to put pillows under the leg and take sedatives in order to sleep. The morning after the accident the doctor, being called about 5 o'clock, on account on the pain, cut a window in the cast. The leg had become quite swollen, causing a pressure on the cast and the pressure was causing the pain.

Defendant testified he suffered sharp pain and ache for about six weeks during which time he took sedatives at night to obtain sleep. 'I would usually sit up most of the night.' During the time the cast was on there was drainage which continued for a week or two after the cast was taken off. He used crutches for about ten...