Jensvold v. Chicago, G.W.R. Co.
| Decision Date | 08 May 1945 |
| Docket Number | 46659. |
| Citation | 18 N.W.2d 616,236 Iowa 708 |
| Parties | JENSVOLD v. CHICAGO, GREAT WESTERN R. CO. |
| Court | Iowa Supreme Court |
William J. Kennedy, of New Hampton, and Edward D Kelly, of Emmetsburg, for appellant.
E P. Donohue, of New Hampton, and Carr, Cox, Evans & Riley and Hubert C. Jones, all of Des Moines, for appellee.
This is the second appeal of this case. It was first tried in 1943 and verdict directed for defendant. Upon appeal to this court the case was reversed. See Jensvold, Adm'r, v. Chicago, G. W R. Co., Iowa, 12 N.W.2d 293. There was a retrial in the district court and at the close of all the testimony defendant moved for directed verdict. The case was submitted to the jury and verdict returned for plaintiff. Thereafter defendant moved for judgment notwithstanding the verdict which motion was sustained and judgment entered for the defendant. Plaintiff appeals.
The facts in relation to the accident are fully set out in the opinion in the former trial and need not be reviewed here. There were only two grounds of negligence alleged in the petition. The first ground charged common law negligence in operation of the train at an excessive and dangerous rate of speed, and the second alleged operation of the passenger train at a speed greater than permitted by New Hampton Ordinance No 107, which limited the speed of passenger trains within the town limits to ten miles per hour. Except as to the offer of the certificate of the Iowa State Commerce Commission, hereinafter referred to, the testimony was substantially the same on the second trial as on the first.
Appellant in addition to other testimony offered in evidence a certified copy of the ordinance in question (passed in 1890), which was Exhibit 'A' attached to the petition and appears as the reporter's Exhibit 9. The copy does not show that the ordinance has been approved by the Iowa State Commerce Commission (formerly the Railroad Commission) at any time since July 4, 1921, the date when the amendment requiring such approval became a law. See Chapter 152. Acts of the Thirty-ninth General Assembly, now found in section 5973, Code of 1939.
At the conclusion of appellant's testimony appellee's motion for directed verdict was overruled. Appellee then offered in evidence the certificate noted above, Exhibit 16, as follows:
Appellant objected to the admission of said certificate for the reasons, (1) that the same was hearsay; (2) that the same was irrelevant and immaterial; (3) that the same was incompetent for any purpose whatsoever; (4) that it was incompetent, irrelevant and immaterial, unwarranted and unauthorized by law; and (5) that the same was further incompetent as an opinion and conclusion as well as hearsay. These objections were at that time overruled by the court.
At the conclusion of all the testimony appellee moved for a directed verdict on the following grounds:
'1. That the plaintiff has failed to prove that the defendant was guilty of any act of negligence whatsoever.
'2. That the plaintiff has failed to prove that the defendant was guilty of the negligence alleged in the petition, or any negligence whatsoever, which was the proximate cause of the accident.
'3. That if the jury returns a verdict in favor of plaintiff it would be the duty of the Court to set the same aside.
Before the court ruled on said motion appellant withdrew specification one of negligence being the allegation of common law negligence. The record does not show any ruling on appellee's motion to direct verdict. The court then set aside its ruling on the admissibility of Exhibit 16, the certificate above referred to, and sustained the objections thereto. A motion by appellee to withdraw specification two of negligence does not show in the record to have been ruled upon. However, the cause was submitted to the jury on the one ground of violation of the ordinance. The jury returned a verdict for appellant.
Thereafter appellee filed its motion for judgment notwithstanding the verdict, which motion recites the fact that appellee moved for directed verdict at the close of all the evidence and reiterates most of the grounds of such motion. The motion further alleges the motion for directed verdict should have been sustained and that the court erred in overruling the same. The second ground of the motion for judgment alleges that the sole ground of negligence relied upon by appellant was the operation of the passenger train at a speed greater than permitted by the New Hampton ordinance offered in evidence by appellant and that the sustaining of appellant's objections to Exhibit 16, the certificate of the Iowa State Commerce Commission, was for the purpose of submission of the case to the jury. There was a prayer for judgment for appellee as provided by Rule 243 of the Iowa Rules of Civil Procedure. To this motion for judgment notwithstanding the verdict appellant filed resistance, alleging that the trial court overruled appellant's objections and admitted said Exhibit 16, but thereafter sustained said objections, and that to induce the court to refrain from directing a verdict and to submit the case to the jury counsel for appellant withdrew the first specification based on common law negligence so as to make a record which would permit final disposition of the case on the second appeal. The motion for judgment notwithstanding the verdict was sustained.
We have, therefore, for consideration the question of whether the court erred in sustaining the motion for judgment notwithstanding the verdict. Rule 243, Iowa Rules of Civil Procedure, provides:
'Any party may, on motion, have judgment in his favor despite an adverse verdict, or the jury's failure to return any verdict:
* * *
* * *
'(b) If the movant was entitled to have a verdict directed for him at the close of all the evidence, and moved therefor, and the jury did not return such verdict, the Court may then either grant a new trial or enter judgment as though it had directed a verdict for the movant.'
It is well to note from the foregoing that: (1) There was no objection to the admission in evidence of Exhibit 9, the certified copy of the ordinance: (2) after the motion to direct verdict the case was submitted to the jury on the second specification of negligence only: and (3) at the time of the submission of the motion for directed verdict the court by sustaining the objections of appellant to Exhibit 16 removed such exhibit from the record. Therefore, the cause went to the jury on appellant's allegation of negligence by violation of the city ordinance, there being in evidence the certified copy of the ordinance and testimony of witnesses as to the speed of the train being in excess of ten miles per hour, but there was not in evidence at the time of submission any evidence in denial of the validity of the ordinance.
I. But appellee's motion for judgment charges that the court was in error in not sustaining the motion for directed verdict. The only ground of the motion for directed verdict about which there can be any argument is that appellant failed to prove appellee was guilty of any act of negligence whatsoever. We think the record sustains the fact that the train was proceeding at a speed of more than ten miles per hour and that this was the proximate cause of the death of appellant's decedent. At any rate, there was a question for the jury. But, whether or not it was sufficient for that purpose, the only negligence which was submitted to the jury was the violation of the ordinance. If this were a valid ordinance its violation would constitute negligence per se. Appellant cites in support of this proposition the case of Black v. Chicago Great Western R. Co., 187 Iowa 904, 174 N.W. 774, 777. It is there said:
'* * * if the train was being operated at a greater rate of speed than 6 miles an hour, and in violation of the ordinance, it would constitute negligence.'
There can be little question about this rule.
II. Appellee urges that the sole question to be decided is whether the record shows a valid ordinance, and argues that the burden of proof is upon appellant to establish its validity. Appellant cites Meier v. Chicago, R. I. & P. R. Co., 224 Iowa 295, 275 N.W. 139, as holding that the burden of proof is upon one who assails the validity of an ordinance to establish its invalidity.
In this case the ordinance was admitted without question. Its invalidity was not pleaded. Appellee assumed the burden of proof by offering Exhibit 16, objection to which was finally sustained. Having thus assumed the burden of establishing the invalidity of the ordinance in the district court, it cannot now take a different position on appeal. Russell v. Chicago M. & St. P. R. Co., 195 Iowa 993, 191 N.W. 806, 192 N.W. 267, and cases cited. See also Benjamin v....
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Jensvold v. Chi., Great W. R. Co.
...236 Iowa 70818 N.W.2d 616JENSVOLDv.CHICAGO, GREAT WESTERN R. CO.No. 46659.Supreme Court of Iowa.May 8, Appeal from District Court, Chickasaw County; M. M. Cooney, Judge. Action to recover damages for death at a railroad crossing. The case was submitted to the jury on the question of neglige......