Jordan v. Schantz

• Decision Date: 17 December 1935
• Docket Number: No. 42936.,42936.
• Parties: JORDAN v. SCHANTZ.
• Court: Iowa Supreme Court

220 Iowa 1251
264 N.W. 259

JORDAN
v.
SCHANTZ.

No. 42936.

Supreme Court of Iowa.

Dec. 17, 1935.

Appeal from District Court, Washington County; J. G. Patterson, Judge.

Action at law for damages resulting from a collision between an automobile driven by plaintiff and a truck owned by defendant and driven by his wife with his knowledge and consent. There was a counterclaim on the theory that the collision was caused by the negligence of the plaintiff. A trial to a jury resulted in a verdict for the defendant with no allowance on his counterclaim. A motion of plaintiff for a new trial was sustained. The defendant appeals.

Affirmed.

S. W. Livingston, of Washington, Iowa, for appellant.

Baldrige & Bailey, of Washington, Iowa, for appellee.

POWERS, Justice.

The collision out of which this controversy arises occurred on state highway No. 2 within the corporate limits of the town of Columbus Junction, and near the western limits of the town and in a suburban district. It occurred at about 5:20 o'clock a. m. on the morning of November 8, 1933. Defendant's truck was traveling in a westerly direction. Defendant and his wife were in the cab of the truck, the

[264 N.W. 260]

wife doing the driving. It was dark and about an hour before sunrise. The defendant's truck was without headlights. It was of the tractor-trailer type and was between 55 and 70 feet in length, with dual wheels on the trailer and on the rear of the tractor. The plaintiff was driving an Essex automobile in an easterly direction on the highway. The highway is surfaced with gravel and at the time of the collision there was a ridge of gravel about three feet wide and 15 to 18 inches high along the south side of the highway. It appears that the traveled portion of the road north of this ridge of gravel was about 24 feet wide.

There is a dispute in the evidence as to the circumstances surrounding the collision. The plaintiff's evidence tends to show that just east of the place where the collision occurred there is a curve in the road to the north. The degree of curvature does not appear. Plaintiff claims that when he first saw the truck it was traveling along the edge of the ridge of gravel and on the outside of the curve and on the truck driver's left-hand side of the road; that when the truck came into view he was 135 or 140 feet from it; that he immediately applied his brakes and slowed down his speed and when he saw a collision was imminent attempted to stop; that at the time the collision occurred, the defendant's truck was engaged in angling across the road to the north side thereof, or to the truck driver's right-hand side, the left-hand side of the truck at the front being then approximately in the middle of the traveled portion of the road and the back end of the truck over on the truck driver's left-hand side of the road. The front left-hand side of plaintiff's car collided with the rear left dual wheel on defendant's truck. The plaintiff's testimony is that the truck moved some distance after the collision. When the cars came to rest after the collision, plaintiff's car was facing almost directly north, but not in contact with the truck. The front end of plaintiff's car was at or under the left rear corner of the trailer attached to defendant's truck. The hind wheels of plaintiff's car were at the edge of or in the gravel ridge. According to plaintiff's testimony, there was substantially nine feet between the left rear corner of the trailer of defendant's truck and the gravel ridge; the left front end of defendant's truck was about 12 feet from the gravel ridge and substantially in the middle of the traveled portion of the road. Defendant's testimony tends to show that the defendant's truck was being operated at all times on its right-hand side of the road; that it was stopped when it was hit and was in exactly the position after the collision that it was at the time the collision occurred, and that after the defendant's truck had stopped, it was entirely on the right-hand side of the road. There is a dispute as to the speed at which plaintiff's automobile was being operated.

[1] I. It is urged by appellant that if, under the evidence, the court should have directed a verdict for the defendant, then it was error for the trial court to set aside a verdict for the defendant found by the jury. We have stated this to be the rule ordinarily. Bennett v. Ryan, 206 Iowa, 1263, 222 N.W. 16. It is not a rule of universal application, however. If the motion for new trial involves questions of the correctness of rulings of the trial court on the admission or exclusion of evidence, the rule might not be applicable. For example, if the plaintiff in a motion for a new trial complained that the court excluded proper evidence bearing upon the question of defendant's negligence and the motion was sustained, it could not be said in that situation that there was error, because under the record made, the defendant should have had a directed verdict. The obvious reason is that if the proffered evidence had been received, the defendant might not have been entitled to a directed verdict. In the case before us, however, the motion for new trial is predicated solely upon the misconduct of the jury in its deliberations and exceptions to the...