Lappe v. Blocker, No. 2--56573

• Court: United States State Supreme Court of Iowa
• Writing for the Court: Heard before MOORE; UHLENHOPP
• Citation: 220 N.W.2d 570
• Parties: Lawrence F. LAPPE, Appellee, v. Robert H. BLOCKER, Executor of the Estate of Arthur J. Blocker, Deceased, Appellant, and Milo Johnson, d/b/a Murray Elevator, Appellee.
• Decision Date: 31 July 1974
• Docket Number: No. 2--56573

Page 570

220 N.W.2d 570 Lawrence F. LAPPE, Appellee,
v.
Robert H. BLOCKER, Executor of the Estate of Arthur J. Blocker, Deceased, Appellant,
and Milo Johnson, d/b/a Murray Elevator, Appellee. No. 2--56573. Supreme Court of Iowa. July 31, 1974.

Winkel, Nitchals & Winkel, Algona, for appellant.

Linnan, Lynch & Peterson, Algona, for appellees.

Heard before MOORE, C.J., and MASON, RAWLINGS, REES, and UHLENHOPP, JJ.

UHLENHOPP, Justice.

This appeal involves the propriety of the trial court's order for a new trial following a jury verdict awarding death damages in a motor vehicle collision case.

South of Bancroft, Iowa, paved United States Highway 169 runs north and south. A county road intersects the highway at right angles. The traveled portion of the county road widens to 133 feet where it joins the highway. Signs on the county road direct traffic to stop before entering the intersection.

During daylight on June 9, 1970, two trucks were proceeding north on Highway 169. Authur J. Blocker, retired farmer aged 65, had stopped his car headed north at the side of Highway 169 some distance south of the intersection in question. The driver of the second truck testified that

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after the first truck passed the stopped Blocker car, Blocker hurriedly drove out onto the pavement and proceeded north between the two trucks. Soon afterward Blocker passed the lead truck, not far from the intersection with the county road. According to the driver of the second truck, Blocker was then traveling 60 to 65 miles per hour. The speed limit in that area was 70 miles per hour. Blocker then proceeded north on his right side of the highway toward the intersection.

At this time, Lawrance F. Lappe, driving Milo Johnson's truck in the course of his employment for Johnson, drove the truck east on the county road toward the intersection. Lappe testified at trial that he stopped at the stop sign, looked south and saw a truck coming at some distance, thought he had time to enter Highway 169, and started to do so, turning north. As he traversed the intersection, he saw the Blocker car pass the truck.

Blocker ran into rear of the truck and died as a result. Lappe was injured, and the two vehicles were badly damaged. The collision occurred on the east side of Highway 169 about 38 feet north of the center of the intersection. The two vehicles ended up quite close together on the east side of the highway, with the rear of the car about 82 feet north of the point of collision.

Also as this time, two men were repairing the county road. They had placed a sign on Highway 169 south of the intersection, indicating construction work ahead. One of the men, who was just off the east side of Highway 169 sawing the cement north and south across the county road, did not see the two vehicles before the collision. The other man, who was farther south on Highway 169 and off of the traveled portion, had a red flag to warn traffic of the work at the intersection. He testified that he saw Blocker go around the lead truck south of the intersection and proceed north and that Blocker was going at least 100 miles per hour. He also tetified that Blocker's speed frightened him causing him to run down into the ditch. His testimony was weakened however by a statement he made on a dictabelt to an insurance adjuster soon after the collision and also by a statement he made to a highway patrolman.

At trial Blocker's executor introduced evidence that under the circumstances which existed, Blocker would generate a speed of 60 to 65 miles per hour with full acceleration. The executor also introduced the opinion of an accident reconstruction expert, who had impressive credentials and experience, that Blocker's speed at impact was 50 to 55 miles per hour. This opinion was in answer to a hypothetical question based on matters in evidence. The parties also introduced considerable circumstantial evidence relating to Blocker's speed.

Lappe and Johnson sought damages of Blocker's executor, who countered by seeking damages of Lappe and Johnson. The parties tried the case to a jury. At the conclusion of the evidence, Lappe and Johnson moved for a directed verdict against the claim of Blocker's executor. The trial court overruled the motion. The jury found for Blocker's executor and awarded him $45,000 from Lappe and Johnson. Lappe and Johnson moved for a new trial, which the trial court granted. Blocker's executor then appealed, and Lappe and Johnson cross-appealed.

In order to understand the case as fully as possible, we have gone beyond the appendix and briefs and have examined all the evidence, the exhibits, and the district court documents. In its order for a new trial, the trial court pointed out that at the conclusion of the trial the jury retired from the courtroom at 1:10 p.m., lunched approximately an hour, returned its verdict at 3:20 p.m., and therefore deliberated for about an hour; that the instructions were necessarily somewhat lengthy and took the court about an hour to read to the jury; that the testimony of the accieent-reconstruction expert was technical and would take time for consideration; that the court

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had previously had experience with expert witnesses reaching opposite conclusions on a single state of facts, indicating the necessity of this jury's reading the instructions on expert witnesses; that when a jury fails to respond truly to the real merits of the controversy, it fails to do its duty, and when a trial court feels that a verdict fails to administer substantial justice or does not effect justice, it should grant a new trial; that a trial court is more than a mere moderator and when convinced justice has not been done should grant a new trial; and that the court was of opinion 'that the verdict does not effect justice, and that the jury has not done its duty in failing to understand and follow the instructions, or to give some instructions due consideration, and that a new trial should be granted.'

We find nothing wrong with most of the principles stated by the trial court, but we have difficulty with the court's application of them to the case. The parties present numerous arguments, but we think three issues control. The first issue is a basic one--the propriety of the grant of a new trial when the trial judge would have decided the facts the other way but the jury has substantial evidentiary support for its verdict. The second issue relates to the amount of time the jury deliberated. The final issue is whether Lappe and Johnson were entitled to a directed verdict on the executor's claim on the ground that Blocker was contributorily negligent as a matter of law.

I. Divergent Judge-Jury Views on Proper Result. Lappe and Johnson are right...