Lantz v. Cook, 51236

• Citation: 256 Iowa 409,127 N.W.2d 675
• Decision Date: 08 April 1964
• Docket Number: No. 51236,51236
• Parties: Albin G. LANTZ, Administrator of the Estate of Mildred F. Lantz, Deceased, Appellant, v. Clarence COOK, d/b/a The Royal Cab Company, and Norman S. Agnew, Appellees.
• Court: United States State Supreme Court of Iowa

Page 675

127 N.W.2d 675

256 Iowa 409

Albin G. LANTZ, Administrator of the Estate of Mildred F. Lantz, Deceased, Appellant, v. Clarence COOK, d/b/a The Royal Cab Company, and Norman S. Agnew, Appellees.

No. 51236.

Supreme Court of Iowa.

April 8, 1964.

Eckerman, McFerren & Fair, Davenport, for appellant.

Kopf & Christiansen and Margaret Stevenson, Davenport, for appellees.

SNELL, Justice.

This is an action at law for wrongful death and automobile damage resulting from an intersection collision of motor vehicles.

Plaintiff is the administrator of the estate of Mildred F. Lantz. Defendant, Clarence Cook, was the owner and defendant Norman S. Agnew, the driver for hire of a taxicab in Davenport.

On December 24, 1961 plaintiff's decedent, operating her own automobile, was driving north on Main Street. Defendant's cab was traveling east on Fourteenth Street. Somewhere near the center of the intersection of the streets the vehicles collided. Both vehicles were damaged. Plaintiff's decedent suffered injuries from which she died.

Plaintiff's claim for damage to decedent's estate and the counterclaim of defendant Cook for damage to his cab, including loss of use, were, under appropriate instructions, submitted to a jury. Plaintiff's specifications of negligence against defendants as submitted included lack of control, failure to yield right of way, failure to keep proper lookout, and failure to obey a stop sign.

Counterclaimant's specifications of negligence against plaintiff's decedent as submitted included speed in excess of that permitted by statute, failure to reduce speed when approaching an intersection, lack of control, and failure to keep a proper lookout.

The necessary instructions on essential propositions, including negligence, proximate cause, contributory negligence and damage, were given and are not now challenged.

At the close of the evidence motions for directed verdict against plaintiff's claim and against defendant's counterclaim were made and overruled.

The jury returned a verdict for defendants thus denying recovery on both claim and counterclaim.

Plaintiff's motions for judgment notwithstanding the verdict and for new trial were overruled. Plaintiff has appealed claiming error in the trial court's refusal to grant a new trial. The jury having denied recovery we have no issue as to damage.

The issues in the trial court were the ordinary issues arising from an intersection collision. There is no claim of error in reception or rejection of evidence or in the instructions. It is not seriously contended that a jury question did not exist. Plaintiff-appellant contends that a new trial should be granted to effectuate substantial justice.

I. The problem before us does not require recital of the evidence.

There was evidence consisting of testimony, plats and physical facts from which a jury could find that either or both drivers were negligent. Some of the evidence was rather weak but its weight and credit was for the jury. In a situation such as we have here unless someone was negligent in at least one of the particulars alleged the collision would not have occurred.

The verdict of the jury was necessarily based on a finding that both drivers were proximately or at least contributorially negligent.

Defendant Agnew was an employee of defendant Cook. His negligence would be imputed to his employer. There was no confusion on that issue.

II. The chief ground on which plaintiff's motions were based and to which argument in the trial court and here has been directed is that the verdict does not effectuate substantial justice. The argument for reversal is based on the fact that the able and experienced trial court expressed dissatisfaction with the verdict. That dissatisfaction, however, did not prompt the court to grant a new trial.

We quote excerpts from the exhaustive and well-reasoned ruling of the trial court.

'The Supreme Court of this state has stated in innumerable cases, commencing with McKay vs. Thorington, 15 Iowa 25, that the Trial Court is vested with a large discretion in passing upon motions for a new trial and this discretion will not be interfered with, especially when a new trial is granted, unless it appears that there has been an abuse of this discretion. However, the Court has repeatedly said that this discretion should not be exercised unless there are valid grounds for its use, and that such discretion is not based merely upon the opinion of the Court that the verdict should have...