Ryan v. Trenkle
| Citation | 200 N.W. 318,199 Iowa 636 |
| Decision Date | 17 October 1924 |
| Docket Number | 36037 |
| Parties | MARIE RYAN, Guardian, Appellee, v. H. TRENKLE et al., Appellants |
| Court | United States State Supreme Court of Iowa |
REHEARING DENIED FEBRUARY 20, 1925.
Appeal from Dubuque District Court.--D. E. MAGUIRE, Judge.
ACTION for damages for personal injuries resulting from a collision of the plaintiff's bicycle with defendant's automobile. There was a verdict for the plaintiff for $ 5,100, and judgment was entered thereon for $ 4,000. The defendants appeal.
Reversed.
Kenline Roedell & Hoffmann and Lyon & Willging, for appellants.
Hurd Lenehan, Smith & O'Connor, for appellee.
The plaintiff brings her action as the guardian of her son, the injured person, Harold Ryan. The defendant Marie Trenkle was the driver of the car, and the defendant H. Trenkle is her father, and the owner of the car. The accident in question occurred on the evening of September 22, 1921, at about 5:30, and at or near the intersection of Main Street and Ninth Street in the city of Dubuque. Main Street is a north and south street. It is intersected at right angles by Ninth Street, which runs east and west. The defendant Marie Trenkle approached the intersection from the south, driving along the east side of Main Street. Young Ryan on his bicycle approached the same intersection from the north, riding along the west side. Near the center of the intersection was a metal plate, referred to in the record as the "policeman." At the time of the accident, there was no other moving traffic or vehicles at this point on either street. The defendant Marie Trenkle, driving a Cadillac automobile, came upon the intersection, and, passing north of the metal plate, turned west on Ninth Street. She was driving at a rate of speed not exceeding five miles an hour. At about the time she turned west, Ryan entered the intersection at its northwest corner. Seeing the approach of the automobile, he also turned west on Ninth Street. A moment later, the right fender or the right end of the bumper of the automobile collided with the bicycle, whereby the boy and the bicycle fell to the pavement, and the front wheel of the car passed over the boy's leg, breaking the same.
The claim of the defendant is that, though the boy turned west on Ninth Street, he suddenly started to cross Ninth Street in front of the automobile; that the defendant immediately swerved her car to the left and towards the southwest, in an effort to avoid contact with him. The claim of the plaintiff is that the automobile bore down upon him, and that he was unable to get out of its way. It appears without dispute that both vehicles moved at the same rate of speed, and that neither accelerated its speed. It appears likewise that, when the car was brought to a stop, immediately after the front wheel had passed over the leg of the plaintiff, it was headed toward the south-west, and that the point of the accident was about 15 feet south of the center line of Ninth Street, and that it was a few feet west of the west lot line of Main Street. That is, the culmination of the accident took place on Ninth Street, and on the south side thereof. The distance between the curbs on each of these streets was 40 feet, and the width of the sidewalks on each was 12 feet. The foregoing are the salient facts in the case, to which further details will be noted in the later discussion.
I. One ground of complaint by appellant is that the verdict was excessive, and was manifestly the result of passion and prejudice, and that such passion and prejudice had been intentionally aroused by counsel for plaintiff, in bringing to the attention of the jury matters which were not proper for their consideration.
The injury consisted in breaking both bones of the leg, at a point three inches above the ankle. The patient was confined in a hospital for a period of twelve weeks. He suffered very great pain for the first three or four days. The recovery was normal. The bones united with true alignment and without shortening. He returned to school in February following, and since that time has been able to engage normally in all the sports of the playground. During the summer following, he was an active member of the baseball team, and was a full back on the football team. The damage sought in this action is for pain and suffering, and for loss of earning capacity after attaining his majority. At the time of his accident, he was a little less than fourteen years of age. There was no claim made herein for any medical or hospital expense. These elements presumably accrued to his father, and were involved in another action.
That the amount of the verdict was excessive, and was the result of some miscarriage of judgment on the part of the jury, is beyond fair debate. A citation of some of our more recent cases will be deemed a sufficient discussion of this point. Lehman v. Minneapolis & St. L. R. Co., 153 Iowa 118, 133 N.W. 327; Gilbert v. Vanderwaal, 181 Iowa 685, 165 N.W. 165; Collinson v. Cutter, 186 Iowa 276, 170 N.W. 420; Sandvig v. Nichtern, 196 Iowa 1124, 196 N.W. 39; Evans v. Roberts, 172 Iowa 653, 154 N.W. 923.
The trial court recognized the excessive character of the verdict, and reduced it to $ 4,000. If, upon this record, the excessive verdict could be cured by a reduction, we do not think the reduction made by the trial court was adequate.
It is quite apparent that the verdict was influenced by extraneous matter. One of such extraneous matters was the diligent suggestion, by examination of jurors and otherwise, that the damage sued for had been insured against. The impression thus conveyed to the jury naturally was that the action was a mere method of collecting insurance. This seems to be a growing practice of trial stratagem, which is not calculated to secure a fair trial, and which incurs the increasing disfavor of the courts. Putnam v. Pacific Monthly Co., 68 Ore. 36, 130 P. 986 ( ); Faber v. Reiss Coal Co., 124 Wis. 554 (102 N.W. 1049), Pekin S. & M. Co. v. Ramey, 104 Ark. 1 (147 S.W. 83); Pierce v. United Gas & Elec. Co., 161 Cal. 176 (118 P. 700); Duncan Coal Co. v. Thompson's Admr., 157 Ky. 304 (162 S.W. 1139); Inland Steel Co. v. Gillespie, 181 Ind. 633 (104 N.E. 76); Stratton v. Nichols Lbr. Co., 39 Wash. 323 (81 P. 831; Mithen v. Jeffery, 259 Ill. 372 (102 N.E. 778).
In the light of what transpired on the trial concerning the subject of insurance, the excessive character of the verdict was a sufficient ground to warrant a new trial. It became evident that the defendants had not had a fair consideration from the jury on any issue.
II. The specific negligence charged in the petition was that the defendant did not have her car under proper control, and that she did not give any warning signal of any kind. The court submitted no other specification of negligence than that of want of proper control. This was done by Instructions 9 and 10, as follows:
To continue reading
Request your trial