Piper v. Brickley

• Citation: 264 N.W. 29,220 Iowa 1090
• Decision Date: 17 December 1935
• Docket Number: 42939.
• Parties: PIPER v. BRICKLEY.
• Court: United States State Supreme Court of Iowa

264 N.W. 29

220 Iowa 1090

PIPER v. BRICKLEY.

No. 42939.

Supreme Court of Iowa.

December 17, 1935

Appeal from District Court, Jones County; F. O. Ellison, Judge.

Plaintiff's decedent, a boy eleven years of age, was walking east on a path at the side of a pavement on the south side of an east and west highway in Illinois. The defendant's automobile ran across the pavement and onto the path, struck the boy who was injured thereby, and died as a result of such injuries. The lower court instructed a verdict for the defendant, and on motion for new trial containing several grounds, sustained the motion generally.

Affirmed.

R. L Parrish, of Des Moines, and B. E. Rhinehart, of Anamosa, for appellant.

John E. Purcell, of Clinton, Dixon, Devine, Bracken & Dixon, of Dixon, Ill., Ed Halbach, of Clinton, J. C. France, of Tipton and C. J. Cash, of Anamosa, for appellee.

PARSONS, Justice.

The defendant and appellant, D. E. Brickley, was a resident of Jones county, Iowa, and on the 29th of August, 1932, was driving east through Lee county, Ill., on highway No. 30 generally known as the Lincoln Highway. His car was being operated by a servant or agent, named W. H. Merritt. At a point on said highway about three miles west of the city of Dixon, in Lee county, Ill., the car ran into and struck Lawrence F. Piper, a boy of eleven years of age. Piper, at the time he was struck, was walking on the south side of the highway, but off the pavement five feet. The plaintiff is the father of the boy and administrator of his estate. The charge in the petition was that the car was operated at a speed in excess of 45 miles an hour, and in a wanton manner and disregard for the safety of others, and that just prior to the collision resulting in the death of young Piper the automobile was zigzagging from side to side of the highway. The petition contained the allegation that the deceased was acting with due care and caution, and without negligence on his part. An amendment to the petition set up that the deceased was walking south of the pavement or traveled portion of the highway, in an easterly direction; and that at the time of the injury the car of the defendant was operated at an unlawful, careless, and negligent rate of speed, and particularly in violation of the statutes of the state of Illinois, which were set out and pleaded in the amendment to the petition.

The answer admitted the residence of the defendant in Jones county; that the car of defendant was operated by Merritt, and was going in an easterly direction upon the highway in question; and that young Piper was walking upon the highway in an easterly direction on the right and south side of the highway, which was a paved highway, and that the deceased was walking upon said highway in the same direction the defendant's automobile was riding, instead of walking on the left side of the highway as provided by a statute of the state of Illinois, section 306b, c. 121, Smith-Hurd Ann. Statutes of Illinois, reading as follows: " It is the duty of any person walking along and upon durable hard surfaced State highways to keep on the left of the paved portion, or on the left shoulder thereof, and upon meeting a vehicle when walking on the said paved portion to step off to the left." The defendant pleads that the injury to the plaintiff's decedent was due wholly to the carelessness and negligence of Piper in not walking upon the left side of the highway and in a place required for pedestrians to walk. The case was tried to a jury, and evidence was introduced, showing the circumstances of the happening of the accident, and the striking of the deceased, and of his death. At the conclusion of the testimony a motion was made to direct a verdict for the defendant. The motion was based upon six grounds. The motion was sustained, and the jury accordingly returned the following verdict: " We, the jury, find for the defendant."

In due time motion for new trial was filed by the plaintiff setting up two numbered reasons therefor, No. 1 having three subdivisions, a, b, and c; No. 2 having four subdivisions, a to d, both inclusive. The court sustained the motion for new trial, and the defendant appealed from this ruling to this court. This was a general appeal, the notice simply stating that the defendant duly appealed from the ruling of the court setting aside the judgment and granting to plaintiff a new trial. So the question that arises in this court is: Did the district court commit an error in granting the motion for new trial?

This court held in Kessel v. Hunt, 215 Iowa, 117, 244 N.W. 714, 716, a trial court order for a new trial upon a definite question of law is reversible, if erroneous, as every other erroneous ruling at law, if prejudicial, is reversible, while a trial court order in general terms for a new trial will be deemed discretionary and reversible only when the trial court has abused its discretion. And in discussing this, the court says: " The rule, however has been long established that where a new trial is granted by the trial court strictly upon a definite question of law, it becomes our duty to review the order as we would any other alleged error, and to reverse the ruling if erroneous." Citing Shaw v. Sweeney (1850) 2 G. Greene, 587; Stewart v. Ewbank, 3 Iowa (Clarke) 191; Cook, Sargent & Cook v. Sypher, 3 Iowa (Clarke) 484; Riley v. Monohan, 26 Iowa, 507; Stockwell v. Chicago, C. & D. R. Co., 43 Iowa, 470; Turley v. Griffin, 106 Iowa, 161, 76...