McMaster v. Hutchins

• Decision Date: 12 March 1963
• Docket Number: No. 50897,50897
• Parties: Wilma Irene McMASTER, Appellee, v. Charles HUTCHINS and Ray L. Gaylor, Appellants.
• Court: Iowa Supreme Court

Page 509

120 N.W.2d 509

255 Iowa 39

Wilma Irene McMASTER, Appellee, v. Charles HUTCHINS and Ray L. Gaylor, Appellants.

No. 50897.

Supreme Court of Iowa.

March 12, 1963.

Rehearing Denied May 7, 1963.

Korf, Diehl, Clayton & Cleverley, Newton, for appellants.

Bray, McCoy & Faulkner, Oskaloosa, for appellee.

GARFIELD, Chief Justice.

Defendants Hutchins and Gaylor have appealed from an order granting a new trial following a jury verdict for them in plaintiff's action to recover for personal injuries resulting from a collision between an automobile in which she was a passenger and one owned by defendant Gaylor, driven with his consent by defendant Hutchins. The principal question here is whether the trial court abused its discretion in granting the new trial. We affirm the order.

The collision occurred March 13, 1961, about 8:30 a. m. on Highway 14 in the northwest part of the city of Newton. Plaintiff's husband was driving the Chevrolet car in which she was riding in a northerly direction. The Gaylor Ford car, driven by Hutchins, was going south. Gaylor was sheriff of Jasper county; Hutchins was his deputy. A third car, an Olds driven by a Mrs. Penny, had stopped, headed south partly on the west shoulder and partly on the west (southbound) lane of the paved highway 100 feet or less north of the point of collision.

From the south the highway curves to the northeast in a descending grade at this point. It was or had been snowing that morning and there was snow and slush on the highway. Mrs. Penny testifies she had trouble getting up the hill, knew she couldn't go farther, drove off the pavement to her right (west) as far as she could and went to a nearby house to phone for a wrecker. A few feet north of where the Penny car stopped North Seventh Avenue West led off to the west.

Defendant Hutchins admits he saw the Penny car when he was about 200 feet north of it but says it then appeared to be parked on the west shoulder. As he got closer he testifies he realized the car was blocking his lane of traffic, he applied his brakes, went into a skid and crossed over into the east--northbound--traffic lane and collided with the McMaster car in which plaintiff was riding, he had only a brief glance at that car before the collision.

The trial court submitted to the jury six charges of negligence against defendants: 1) speed, failure to: 2) keep a proper lookout, 3) reduce speed to a reasonable and proper rate on a curve, and 4) have the Gaylor car under control, 5) drive at a speed which would permit stopping within the assured clear distance, and 6) drive on the right side of the center of a city street.

Defendants amended their answer to allege in some detail their version of the collision and '11. That the acts and conduct of Mary Penny were the sole and proximate cause of the collision and plaintiff's alleged injuries and damage. 12. That Hutchins was confronted with a sudden emergency not of his own making.'

The ruling on plaintiff's motion for new trial states:

Rule 244, Rules of Civil Procedure, enumerates grounds upon which new trials may be granted and in addition the Supreme Court has frequently held a trial court, ever acting in the exercise of a sound legal discretion, has the inherent power to set aside verdicts and grant new trials if justice requires.

'This Court has given the matters presented by plaintiff's motion (which go in part to the rule of procedure above mentioned and in part to the inherent power aspect) long and careful consideration and while it is unable to find any specific error reflected in the record it is brought irresistably to the conclusion that the verdict does not find sufficient support in the evidence and is contrary to the great preponderance of the evidence. The verdict also reflects a failure of the jury to correctly apply appropriate rules of law to the fact situation involved. In sum, the verdict does not effectuate substantial justice and cannot be approved by this Court.'

Defendants concede in argument the trial court had a broad but not unlimited discretion in granting a new trial on the ground the verdict does not effect substantial justice. The particular point they make is that the record must show reasons or grounds which account for the alleged unjust verdict and they say here there are none. They virtually admit 'if such grounds actually exist the grant of the new trial should be upheld even though the trial court failed to specify such grounds.' If we accept the view this record must show reasons or grounds which fairly account for the verdict, we have little difficulty in finding them.

Defendants account for this verdict on the ground the jury found the presence of the Penny car was the sole proximate cause of the collision. They say, 'It is apparent the jury could and did find the Penny car was the sole proximate cause of the collision. * * * There was a jury question on the issue of sole proximate cause, the verdict in that respect being supported by substantial evidence.'

I. We think the court's instructions to the jury were in error in two important respects, prejudicial to plaintiff, in submitting defendants' affirmative defenses that the acts of Mrs. Penny were the sole cause of the collision and plaintiff's injuries and damage, and that defendant Hutchins was confronted with a sudden emergency not of his own making by the presence of the Penny car. These errors may well reasonably account for the jury verdict.

The court's instructions should have placed upon defendants the burden to prove by a preponderance of the evidence these affirmative defenses. Not only was this not done but instruction 18 told the jury, 'In the absence of evidence of legal excuse, proof of the violation of a statutory law of the road is sufficient to establish negligence, but if there is evidence of legal excuse, the burden remains on the plaintiff to prove by a preponderance of the evidence that the statutory violation, if any, was not excused.' (Emphasis added.)

'If you find by a preponderance of the evidence that the defendant Hutchins has violated any of the statutory provisions referred to in the last three prior instructions, and further find by a preponderance of the evidence that such violation, if any, was not legally excused, as herein defined, then such violation would constitute negligence.'

Instruction 18 is made applicable to three of plaintiff's six charges of negligence against defendants and three of the four familiar legal excuses announced in Kisling v. Thierman, 214 Iowa 911, 916, 243 N.W. 552, 554, and a long line of later decisions. Included in these three excuses is the one pleaded by defendants that Hutchins was confronted by a sudden emergency not of his own making.

As recently as Pinckney v. Watkinson, Iowa, 116 N.W.2d 258, 262, which defendants cite and discuss at length, we held, 'Of course, one who claims excuse on the ground of sudden emergency not created by his own act has the burden to prove it * * *.'

One of the citations in the Pinckney opinion for the quoted statement is Luppes v. Harrison, 239 Iowa 880, 885-886, 32 N.W.2d 809, 812-813, which says: 'The burden of proof as to the allegations of appellee's petition at all times rests upon him but it is not incumbent upon the appellee to prove that no emergency existed. It is the duty of the appellant to support this allegation of his defense. It is also incumbent on the appellant to sustain his contention that such an emergency had developed as would constitute a legal excuse.'

Babendure v. Baker, 218 Iowa 31, 33-34, 253 N.W. 834, 835, approved in Luppes v. Harrison, supra, is to like effect. It is there held: 'The burden * * * rested upon appellant to show a legal excuse for the presence of the Buick automobile on the wrong side of the pavement.'

A similar precedent is Cunningham v. Court, 248 Iowa 654, 663-664, 82 N.W.2d 292, 298, also cited with approval in Pinckney v. Watkinson, supra. The Cunningham opinion in turn also approves Luppes v. Harrison, supra, on this point and holds, 'It therefore, became defendant's duty to prove a 'sudden emergency' as an excuse for his presence in the left lane, * * *.' The opinion also approves the trial court's decision that the issue whether defendant 'met his burden to prove' an emergency 'existed, independent of his own fault, was for the jury.'

Harris v. Clark, 251 Iowa 807, 810, 103 N.W.2d 215, 217, says of Cunningham v. Court, supra, '* * * we held * * * the issue as to whether there was an emergency and whether defendant had met his burden to prove such existed, independent of his own fault, was for the jury.'

Bletzer v. Wilson, 224 Iowa 884, 889, 276 N.W. 836, 839, is quite closely in point. There, as here, a new trial was granted following a jury verdict for defendant in an automobile damage case. The trial court thought there were errors in the instructions to the jury, without attempting to point them out. The principal error we found which justified the ruling was an instruction much like instruction 18 here. We held: 'In the case at bar the court placed the burden of proving the nonexistence of an emergency upon the plaintiff. We think this was error. It is true that in actions of this kind the burden of proof rests upon the plaintiff, but he certainly is not burdened with the necessity of proving that no emergency existed if he is not attempting to excuse his own negligent conduct by reason of a sudden and unexpected emergency not created by himself.'

In the Bletzer case defendant's answer was a mere general denial--not, as here, a pleading that certain described acts of a third party were the sole proximate cause of the collision and confronted defendant driver with an emergency not of his own making.

Harris v. Clark, supra, 251 Iowa 807, 814, 103 N.W.2d 215, 219, observes with apparent approval, 'In Bletzer v. Wilson * * * an order granting a new trial was affirmed and * * * we held placing the burden of proving...