Russell v. Chicago, R.I. & P.R. Co.

• Decision Date: 03 May 1960
• Docket Number: No. 49922,49922
• Citation: 251 Iowa 839,102 N.W.2d 881
• Parties: Ted R. RUSSELL, Appellee, v. CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANY, Appellant.
• Court: Iowa Supreme Court

Page 881

102 N.W.2d 881

251 Iowa 839

Ted R. RUSSELL, Appellee, v. CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANY, Appellant.

No. 49922.

Supreme Court of Iowa.

May 3, 1960.

Roscoe Jones, Atlantic, A. B. Howland and B. A. Webster, Jr., Des Moines, for appellant.

James B. Smith, Perry, Harold DeKay, Atlantic, and John Paul Jones, Des Moines, for appellee.

GARFIELD, Justice.

This is a law action by Ted R. Russell against Chicago, R. I. & P. R. Co. to recover for personal injuries from a collision between an automobile owned and driven by one Petersen, in which plaintiff was a passenger, and a freight train of defendant standing on a grade crossing in Atlantic, Iowa, about 8:45 p. m., January 11, 1955. Trial resulted in jury verdict and judgment for plaintiff from which defendant has appealed.

This is the second appeal in this case--following the second trial thereof. The first trial also resulted in jury verdict for plaintiff but the district court granted defendant's motion for judgment notwithstanding verdict and, in the alternative, for a new trial. Upon plaintiff's appeal we reversed the order granting judgment notwithstanding verdict but affirmed the order granting new trial because of improper jury argument by plaintiff's counsel. 249 Iowa 664, 86 N.W.2d 843. The factual situation sufficiently appears from the opinion there reported.

I. Defendant first assigns error in the court's refusal to remove the case from the jury assignment and assign it for trial without a jury.

Rule 177(b), Rules of Civil Procedure, 58 I.C.A., provides: 'A party desiring jury trial of an issue must file a written demand therefor * * * within ten days after the last pleading directed to that issue.'

Rule 177(d) states: 'Notwithstanding the failure of a party to demand a jury * * * the court, in its discretion on motion and for good cause shown, * * * may order a trial by jury * * *.'

This action was commenced May 11, 1955. No formal demand for a jury was made but the case was placed in the jury assignment. On the day the first trial started defendant moved that it be transferred to the nonjury assignment because a jury had not been demanded. The motion was denied and, as stated, trial was to a jury. Although the railroad, appellee on the first appeal, then contended the claimed error in proceeding with a jury trial was sufficient ground for ordering the new trial we evidently found it unnecessary to consider the point.

After the remand for a new trial defendant again moved to order trial without a jury because one had not been demanded. Plaintiff moved to strike defendant's motion. The case was specially assigned for trial to a jury. Four days prior to the trial date plaintiff filed a former demand for jury trial. Later that same day defendant again moved to assign the case for trial without a jury on the ground plaintiff's demand was not timely. The court ordered that trial to a jury proceed since the first trial was to a jury, the case was specially assigned some weeks prior to commencement of the term for retrial to a jury and arrangements were made with the court to hear the jury case on November 17, 1958, when trial commenced.

We are not persuaded it was an abuse of discretion, under the circumstances here, to retry the case to a jury. The fact the first trial was to a jury afforded some basis for plaintiff's counsel to assume the second trial would likewise be to a jury. The record indicates the special assignment for the second trial was made more than two months before the date set. Defendant concedes the case was placed in the jury assignment without objection by its local counsel. It is fair to think he in turn promptly notified his associates thereof. Although plaintiff's demand for jury trial was belated it was in fact filed before the trial. The court evidently felt it would be a considerable inconvenience if trial to the jury did not proceed as planned.

Rule 177(d), partly quoted above, contemplates the court has discretion to order a jury trial notwithstanding failure to demand one within the ten-day period referred to in 177(b). Such a rule is the one generally recognized by the cases. Annotation 64 A.L.R.2d 506, 519 et seq. See also Id., pages 540 et seq., 552 et seq.; 50 C.J.S. Juries § 102a, p. 809.

II. Error is assigned in striking as untimely an amendment to defendant's answer, filed at the beginning of the trial, 3 1/2 years after the action was commenced, alleging plaintiff was not a mere passenger in the Petersen automobile but the two were engaged in a joint venture and the negligence of Petersen, the driver, was the negligence of plaintiff. Until then defendant's answer admitted plaintiff was a passenger in the Petersen car. We hold the ruling was not an abuse of discretion and, further, was without prejudice to defendant.

Rule 88, R.C.P., provides, 'Any pleading may be amended before a pleading has been filed responding to it. The court, in furtherance of justice, may allow later amendments, including those to conform to the proof and which do not substantially change the claim or defense. * * *.' There can be no question this amendment would substantially change the defense.

The facts relied upon as a basis for this amendment were brought out at the first trial in March, 1956, although perhaps somewhat amplified in a deposition of plaintiff taken three days before the second trial. Rule 141, R.C.P., as amended effective July 4, 1957, permitted taking such a deposition at any time thereafter. The long delay in filing the amendment was sufficient ground for the trial court, in its discretion, not to permit it. Brown v. Schmitz, 237 Iowa 418, 421-423, 22 N.W.2d 340, 342-343; Robinson v. Home Fire & Marine Ins. Co., 244 Iowa 1084, 1089-1090, 59 N.W.2d 776, 779-780; Pansegrau v. Collins, 247 Iowa 632, 634-636, 75 N.W.2d 249, 251-252. See also Skinner v. Polk County, 250 Iowa 1264, 98 N.W.2d 749, 750-751.

Defendant says the amendment to answer should in fairness have been permitted because plaintiff was allowed to amend his petition at the beginning of the trial by reducing from five to three, and restating in somewhat different form, the specifications of defendant's alleged negligence. We think there was no inconsistency in these two rulings which indicates an abuse of discretion in disallowing the amendment to answer. Plaintiff's amendment did not substantially change his claim. The trial court felt it narrowed, rather than expanded, the alleged grounds of negligence and we are not inclined to disagree.

The record does not disclose, nor does defendant assert, it was precluded by the disallowance of its amendment from offering any evidence it could to support the defense plaintiff and Petersen were engaged in a joint venture so the latter's negligence would be imputed to the former. We find no substantial evidence to support such a defense. Defendant was therefore not prejudiced by disallowance of the amendment. As bearing on this see Robinson v. Home Fire & Marine Ins. Co., supra, 244 Iowa 1084, 1091, 59 N.W.2d 776, 780-781; Agans v. General Mills, Inc., 242 Iowa 978, 986, 48 N.W.2d 242, 246-247.

Before the negligence of Petersen could be imputed to plaintiff on the theory they were engaged in a joint venture there must be some evidence plaintiff had the right to control in some manner the operation of the automobile. Stingley v. Crawford, 219 Iowa 509, 512-513, 258 N.W. 316, and citations; Carpenter v. Wolfe, 223 Iowa 417, 426, 273 N.W. 169; Churchill v. Briggs, 225 Iowa 1187, 1188-1191, 282 N.W. 280; Newman v. Hotz, 226 Iowa 834, 838, 285 N.W. 287; 65 C.J.S. Negligence § 168c, p. 813; 5 Am.Jur., Automobiles, section 501; Id., Vol. 38, section 249 ('The occupant as well as the driver must be entitled to a voice in the control and direction of the vehicle.'); Annotation 95 A.L.R. 857, and earlier annotations therein cited. Barrett v. Chicago, M. & St. P. R. Co., 190 Iowa 509, 521, 175 N.W. 950, 180 N.W. 670, is like this case on the point now considered.

There is no evidence plaintiff attempted to direct or control the operation of the Petersen car. In fact it appears he did not do so. The mere circumstance plaintiff bought Petersen five gallons of gasoline earlier in the evening is insufficient basis for a finding the former was entitled to a voice in control of the automobile. 65 C.J.S. Negligence § 168c, p. 816; 5 Am.Jur., Automobiles, section 501, page 787.

III. Defendant contends it was entitled to a directed verdict on the grounds the railroad crossing in question was not peculiarly hazardous or dangerous and the record is insufficient to establish its actionable negligence with respect to maintenance or repair of the automatic signal gong at the crossing.

Upon the prior appeal we held a jury question was presented upon the negligence of defendant in creating a hazardous situation at the crossing and failing to protect travelers from it. Also as to whether the automatic signal was not operating (defendant concedes there was such a question upon the second trial) and whether defendant's employees knew, or in the exercise of reasonable care should have known, of such nonoperation so as to protect highway traffic by some other proper warning. These holdings are the law of the case unless the evidence upon the second trial is materially different from that on the first trial. Snook v. Long, 243 Iowa 61, 63-64, 50 N.W.2d 366, 368, and citations; 5B C.J.S. Appeal and Error § 1834d, pp. 219-223; 3 Am.Jur., Appeal and Error, section 1000.

Examination of the record upon the first appeal satisfies us the evidence upon the second trial is not materially different. The new evidence is largely cumulative in character and does not render inapplicable the law of the case doctrine. Lawson v. Fordyce, 237 Iowa 28, 31, 21 N.W.2d 69, 73, and citations, where the doctrine is discussed at length; 5B C.J.S. Appeal and Error § 1834d, p. 223. See also in this connection Pellett v....