LaNdis v. Interurban Ry. Co.

• Decision Date: 01 November 1915
• Docket Number: No. 30444.,30444.
• Citation: 154 N.W. 607,173 Iowa 466
• Parties: LANDIS v. INTERURBAN RY. CO.
• Court: Iowa Supreme Court

173 Iowa 466

154 N.W. 607

LANDIS

v.INTERURBAN RY. CO.

No. 30444.

Supreme Court of Iowa.

Nov. 1, 1915.

Appeal from District Court, Dallas County; L. N. Hays, Judge.

This is an action at law to recover damages for personal injury sustained by the plaintiff. It has once before been in this court, where the judgment of the trial court was reversed. Landis v. Interurban Railway, 166 Iowa, 20, 147 N. W. 318. A procedendo issued to the trial court on September 30, 1914. Some time after that a paper denominated an amended and substituted petition was filed by plaintiff, setting up substantially the same grounds of negligence. Appellee, the defendant in the court below, filed a motion in two divisions, one to strike the new pleading and the other for a judgment. Defendant's motion to strike was overruled, but there is no appeal from that ruling. Defendant's motion for judgment was sustained. This appeal is from the action of the court in sustaining the motion for judgment. Reversed and remanded.E. J. Kelly, of Des Moines, and H. G. Giddings, of Mitchell, S. D., for appellant.

Parker, Parrish & Miller, of Des Moines, and White & Clarke, of Adel, for appellee.

PRESTON, J.

The only issue presented was on the motion for judgment upon the record as then made. No evidence was taken or offered. The action was originally brought August 15, 1912, to recover damages for personal injury to plaintiff. It was tried to a jury, resulting in a verdict for plaintiff, and the cause was then appealed to this court by the defendant company. The judgment of the trial court was reversed by the Supreme Court, and the cause sent back to the district court for further proceedings. After the cause had been assigned for trial, and before it was reached, defendant filed its motion for judgment, which, as before stated, was sustained. At the time this motion was sustained the cause stood in the trial court without proof on either side, but upon the issues made by plaintiff's petition, and the denial of the defendant, save as the same may have been altered by the legal effect of the former trial, appeal, and reversal. The errors relied upon by defendant on that appeal were resolved in favor of plaintiff, except upon the question of plaintiff's contributory negligence. Following the discussion of that evidence, the court said:

“While not departing from the rule that questions of negligence and of contributory negligence are, as a general thing, primarily for a jury, it is nevertheless as much our duty in clear cases to say that a defendant who is without fault should not be held to answer for an injury done, and that a plaintiff or a party injured who has not shown himself free from contributory negligence, but, on the contrary, has failed to exercise the care required of him, cannot throw the responsibility upon another, although such other may also have been at fault. So long as the doctrine of contributory negligence applies, it must be recognized by both courts and juries, and, if juries fail in their duty, the responsibility is upon the court. Such responsibility is even greater where a jury fails to do its full duty than where it exercises its judgment upon a fair conflict in the testimony, or in the inferences to be derived therefrom. There is, to our minds, no explanation for the accident, save that plaintiff was entirely heedless or oblivious of his surroundings.”

On the question of last fair chance, also submitted to the jury in the first trial, we said:

“As we view the record, there was not sufficient testimony to justify a verdict on this ground.”

The opinion finally concluded as follows:

“For the reasons pointed out, the judgment must be and it is reversed.”

Thereafter the ordinary procedendo issued to the trial court containing these provisions, and wherein it is stated that the Supreme Court--

“on the 14th day of May, 1914, did reverse the judgment aforesaid granted in the court below and order further proceedings to be had in said court not inconsistent with the opinion of the Supreme Court. Therefore you are hereby commanded that, with the speed which of right and according to law you may, you proceed in the manner required by law and in harmony with the opinion in this court, anything in the record or proceedings aforesaid heretofore certified to the contrary notwithstanding.”

At the time the motion was heard the plaintiff did not tender or offer of record any testimony, and there was no further hearing or trial in the district court after the reversal, except the hearing of the two motions before referred to.

[1] The order reversing the case on the first appeal, as stated in the opinion, was general, and it is not claimed that the Supreme Court in its opinion gave any specific direction that the trial court should enter a judgment for defendant upon the finding of the Supreme Court that plaintiff was guilty of contributory negligence. This could have been done. The rule, as stated in some of the cases, that in actions at law:

“It is only where the facts in issue in a cause are settled, either by agreement of the parties, a finding of the court or a referee, or by the special verdict of a jury, that a reversal of the judgment in this court is final.”

But we think the statute is broad enough to authorize this court, if the circumstances warrant, to render a final judgment; that is, such a judgment as the district court should have entered. Such has been the practice at least. See McCarl v. Clarke County, 148 N. W. 1015, top of page 1020. In that case the holding was that we should not extend the ruling farther than the case of McCann v. Clarke County. The purpose was to end litigation, and the opinion specifically directs the trial court upon remand to render a judgment for the other party.

We think the question has been foreclosed by our own decisions. In Seevers v. Coal Co., 166 Iowa, 284, 294, 147 N. W. 761, 765, we said:

“A reversal of the judgment on appeal, with order for new trial general in form, and with no directions to the trial court limiting its scope or effect, brings the case back for trial upon the issues joined just as if the former trial had never taken place. * * * Indeed, after considerable research, we have been unable to find any authority sustaining the position that after a reversal of a judgment in a law action, with an order for new trial limited by no directions from the appellate tribunal, the trial court may proceed to enter judgment for either party on any of the issues joined because of anything appearing in the record of the former trial.”

In Dryden v. Wyllis, 53 Iowa, at page 391, 5 N. W. 519, we said:

“It was, however, the duty of the district court to proceed, try, and determine the issues joined in the petition for a new trial, as if no appeal had been taken. What this court held in the former appeal was that the evidence was not sufficient to sustain the judgment, but it was not held that the plaintiff could not introduce more evidence, and thus establish the fact that he was entitled to a new trial.”

See, also, Pomroy v. Parmlee, 10 Iowa, 154;Meadows v. Insurance Co., 67 Iowa, 57, 24 N. W. 591;Gray v. Regan, 37 Iowa, 688, at page 690;Artz v. Railway, 38 Iowa, 293;Inman Mfg. Co. v. American Cer. Co., 155 Iowa, 651, 136 N. W. 932; 2 R. C. L. 244; Talcott v. Delta Co. Land, etc., 19 Colo. App. 11, 73 Pac. 256;Zanesville Gaslight Co. v. Zanesville, 47 Ohio St. 35, 23 N. E. 60;Belskis v. Dearing Coal Co., 246 Ill. 62, 92 N. E. 575, 20 Ann. Cas. 388;Rigdon v. More, 242 Ill. 256, 89 N. E. 992, 134 Am. St. Rep. 328.

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