Rupp v. Kohn

• Decision Date: 22 September 1930
• Docket Number: 40310
• Parties: DONALD RUPP, Appellee, v. B. J. KOHN, Appellant
• Court: Iowa Supreme Court

232 N.W. 174

210 Iowa 969

DONALD RUPP, Appellee, v. B. J. KOHN, Appellant

No. 40310

Supreme Court of Iowa, Des Moines

September 22, 1930

Appeal from Cherokee District Court.--C. C. BRADLEY, Judge.

Action at law, for damages for personal injuries sustained in an automobile collision. Verdict for the defendant. A motion to set aside the verdict and grant a new trial was sustained. From this order defendant appeals. The facts appear in the opinion.

Affirmed.

Herrick & Ary and Jepson, Struble & Sifford, for appellant.

Molyneux Maher & Meloy, for appellee.

GRIMM J.

OPINION

GRIMM J.

Sometime about 9 o'clock in the morning of May 13, 1928, Fred N. Rupp, the father of Donald Rupp, left his home in a closed car, with his family, to attend church. Donald was then about 26 months old. In the front seat with Fred Rupp, the father, there were three children,--Donald, sitting next to the driver, and a nephew, Walter, who was holding a child named Richard on his (Walter's) lap. Mrs. Rupp was in the back seat, and with her were five children, two of whom belonged to her sister. After driving west for some distance, they turned south. The road on which the plaintiff was driving south was a 26-foot grade, not paved. It appears that the road was practically level from the corner, south, for a distance of about 20 rods. There is then a gradual rise for about 40 rods, and then the road is downhill for some distance. The collision which resulted in the injury of which complaint is made, occurred about 45 feet north of the crest of the hill. The entire 26-foot grade was fit for travel, but there was a portion approximately in the center which had been made smooth from travel. On either side of the roadway was a ditch, approximately 1 1/2 to 2 feet in depth. West of the west ditch there was an embankment. East of the east ditch was comparatively level.

As the plaintiff drove south toward the crest of the hill, he was traveling approximately 2 1/2 feet from the west side of the highway. It appears that the defendant's car was discovered by the plaintiff when it was approximately 300 feet away. The plaintiff was driving 30 or 35 miles an hour, and he continued at that rate until within about 40 feet from where the collision occurred. It is conceded that the defendant gave no signals of any kind as he came over the crest of the hill, and until the collision occurred. It appears without dispute that, when the plaintiff first saw the defendant's car, plaintiff turned to the west, and he continued traveling close to the ditch on the west side of the roadway until just a moment before the collision.

The plaintiff testifies in reference to what occurred just before the collision as follows:

"Just the moment before the impact of the collision, I swung to the left-hand side. I saw that it was impossible to avoid the accident, and I figured that, if I would turn to the right, I would go into the ditch, and he would hit me and turn me over; and I figured that the best chance was to turn to the left. He was coming straight at me. A 20 to 30-inch ditch was right on the west side of the highway. I probably swung two feet out of the track just before we hit."

The defendant, as a witness, testified, among other things, as follows:

"As I drove along, I watched the road, but I probably looked over in the field once in a while. I saw the car coming toward me, driven by Mr. Rupp. When I saw him, I turned to the right, to the east. The car driven by Rupp turned to the east at the same time. * * * After my car stopped, it was about eight feet from the west edge of the road. The front end was not over eight feet from the east side of the road. I turned to the right as soon as I saw him. * * * Just before the accident happened, we both swung east. Just at the time of the accident, Mr. Rupp was east of the center of the road, or it might have been right in the center of the road."

It was a clear day, there were no obstructions to the vision, except the crest of the hill, and there were no diverting circumstances.

I. The jury returned a verdict for the defendant. The plaintiff filed a motion for a new trial, and exceptions to the instructions. The motion for a new trial was a multipointed one, consisting of several grounds. The court ruled generally, without in any wise specifying upon which ground or grounds of the motion a new trial was granted.

This court said, in Woodbury Co. v. Dougherty & Bryant Co., 161 Iowa 571, 143 N.W. 416, 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. The reasons for this rule have so many times been given that it is needless to do more than cite some of the cases in support thereof: Dewey v. Railroad Co., 31 Iowa 373; Royer v. Plaster Co., 147 Iowa 277, 126 N.W. 168; Holland v. Kelly, 149 Iowa 391, 128 N.W. 338."

Again, in Sheridan Bros. v. Dealy, 198 Iowa 877, 200 N.W. 335, we said:

"The granting of a new trial is a matter resting largely in the sound discretion of the trial court, and the exercise of this discretion will not be interfered with, where a new trial has been granted, unless it appears to have been abused. Post v. City of Dubuque, 158 Iowa 224; Woodbury Co. v. Dougherty & Bryant Co., 161 Iowa 571, 143 N.W. 416; Rosche v. Bettendorf Axle Co., 168 Iowa 461, 150 N.W. 663; Benefiel v. Semper, 185 Iowa 410, 170 N.W. 737; Perry Nat. Bank v. Engnell, 198 Iowa 26, 199 N.W. 283." And further, the court said: "There can be no reversal of an order sustaining a motion for a new trial if any of the grounds of the motion are good."

See, also, Herrman v. O'Connor, 209 Iowa 1277, 227 N.W. 584; Utseth v. Pratt-Mallory Co., 208 Iowa 1324, 227 N.W. 115; Christensen v. Howson (Iowa), 226 N.W. 34 (not officially reported).

II. One of the grounds of the motion for a new trial is that the verdict is not sustained by sufficient evidence. Upon the record made in this case, it appears that the plaintiff was driving south, on the proper side of the roadway, at a reasonable rate of speed, and when he first saw the defendant's car, as it appeared over the crest of the hill, the plaintiff turned farther to his right side,--that is to say, to the west side of the highway. He...