Powers v. Des Moines City Ry. Co.

• Decision Date: 02 July 1909
• Citation: 143 Iowa 427,121 N.W. 1095
• Parties: POWERS v. DES MOINES CITY RY. CO.
• Court: Iowa Supreme Court

143 Iowa 427

121 N.W. 1095

POWERS

v.DES MOINES CITY RY. CO.

Supreme Court of Iowa.

July 2, 1909.

Appeal from District Court, Polk County; W. H. McHenry, Judge.

On rehearing. Reversed.

For former opinion, see 115 N. W. 494.

In an action to recover damages for personal injuries received by plaintiff through the negligence of the defendant in so operating one of its electric street cars that plaintiff was struck thereby while crossing a street in the city of Des Moines, the court at the conclusion of the evidence directed a verdict for defendant, and after the overruling of a motion for new trial the plaintiff appealed from the ruling on such motion.Ludolph & Reynolds and Sullivan & Sullivan, for appellant.

N. T. Guernsey and Parker, Hewitt & Wright, for appellee.

McCLAIN, J.

1. It is first insisted for appellee that this court is without jurisdiction to entertain the appeal, because it was not taken within six months from the date of the final judgment. It appears: That on February 19, 1906, a verdict for defendant was returned by the jury under the court's direction, and final judgment was rendered on that date; that within the statutory period allowed for the purpose a motion for new trial was filed which was not ruled upon until December 13th following, when it was overruled. Appeal was taken from this ruling within six months, and, if there was any error in overruling the motion which can be considered on an appeal, we may properly reverse on that ground, although such time had elapsed after the rendition of the judgment that errors in directing the verdict and entering judgment in pursuance of such verdict cannot be considered.

First it is insisted that the motion for new trial was too indefinite to properly bring to the attention of the court any error committed in directing the verdict and rendering judgment thereon; but in the motion for a new trial the court's attention was directed in various forms to the alleged error of the court in directing a verdict on the ground that the evidence conclusively showed such contributory negligence on plaintiff's part as to defeat his right to recover, and the trial court in ruling on the motion indicated that its action was based on the ground of want of evidence to show plaintiff's freedom from contributory negligence. We are not disposed to resort to any purely technical tests for the purpose of determining whether a question is sufficiently raised by a motion for new trial. If the motion unequivocally calls the attention of the court to the respects in which it is claimed error was committed, it is sufficient to invoke the action of the trial court. Under Code, § 4101, an order granting or refusing a new trial is expressly made appealable; and by Code, § 3755, par. 8, “error of law occurring at the trial, excepted to by the party making the application,” is expressly made a ground for granting a new trial. If, then, the court's attention was directed by the motion for new trial to error committed in directing a verdict on account of want of evidence of plaintiff's freedom from contributory negligence, the court's action in refusing to grant a new trial on that ground is subject to review.

In the second place, it is said that, while in general a ruling on a motion for new trial may be reviewed on an appeal taken within six months, yet if the error thus relied upon inheres in the judgment itself, from which no appeal has been taken within six months, such error cannot be taken advantage of on the appeal from the ruling refusing a new trial; in other words, if the error might have been corrected on an appeal from the judgment, it cannot be corrected on an appeal from a ruling on a motion for a new trial based on that ground. This contention is predicated on the opinion of this court in McLaughlin v. Hubinger Bros., 135 Iowa, 595, 113 N. W. 475. That case has been overruled in Mueller Lumber Co. v. McCaffrey (Iowa) 118 N. W. 903, in which it is held that errors of law assigned in a motion for new trial may be considered on an appeal from an order of the court overruling such motion, although the same errors might have been taken advantage of on appeal from the judgment itself. It had already been held by this court (In re Bishop's Estate, 130 Iowa, 250, 106 N. W. 637) that the time within which an appeal may be taken from an order denying a new trial does not commence to run until the actual entry of the order, and that on such appeal errors involved in the ruling might be considered, although final judgment had already been entered. We are therefore at liberty to consider on this appeal any question properly raised by the motion for new trial, although the same question might have been raised by an appeal from the judgment, had such appeal been prosecuted in time.

2. The evidence tends to show that, just before the accident resulting in the injury to plaintiff for which he seeks to recover, plaintiff and two companions were waiting at the southeast corner of Grand avenue and Tenth street, in Des Moines, for a car going west on Grand avenue, and that when they saw a car coming west which did not turn up Ninth street they supposed it to be the car which they desired to take, and proceeded to cross the street diagonally to the northwest; it being necessary to do so in order to enter from the north side of the car at its proper stopping place on the west side of the street. Plaintiff was about three feet behind his companions, and, although they crossed the street in safety, plaintiff was struck while over the north rail and severely injured. The car was in fact not one on which passengers were being received, but was proceeding to the car barns, and there was no occasion for it to stop for the purpose of taking passengers at this street crossing. The negligence alleged as against defendant was in operating the car at too high a rate of speed, in not sounding any gong by way of warning to plaintiff of the approach of the car, and in not slacking the speed of the car after danger to plaintiff became apparent. For the purpose of discussing the alleged error in directing a verdict for want of evidence of plaintiff's freedom from contributory negligence, we may assume that the record shows that there was a question for the jury under the evidence which reference...