Spaulding v. Miller, 41794.

• Decision Date: 18 July 1933
• Docket Number: No. 41794.,41794.
• Citation: 216 Iowa 948,249 N.W. 642
• Parties: SPAULDING v. MILLER et ux.
• Court: Iowa Supreme Court

216 Iowa 948

249 N.W. 642

SPAULDING

v.MILLER et ux.

No. 41794.

Supreme Court of Iowa.

July 18, 1933.

Appeal from District Court, Page County; O. D. Wheeler, Judge.

Action at law for damages resulting to estate of George A. Spaulding, which it is claimed were caused by the negligence of the defendants. From a verdict and judgment in favor of the plaintiff, the defendants appeal.

Reversed.Wilson & Wilson, of Shenandoah, and Stipe, Davidson & Davidson, of Clarinda, for appellants.

Ferguson & Ferguson, of Shenandoah, for appellee.

DONEGAN, Justice.

At the outset of this case, we are confronted with several motions filed by the parties after the briefs and arguments in the main case had been filed. These motions were ordered submitted with the case, but, in view of the decision which we reach, it becomes unnecessary to consider them in this opinion.

I. The first error relied upon by appellants for reversal is as follows: “The court erred in overruling defendants' motion for directed verdict in that plaintiff's intestate was guilty of contributory negligence as a matter of law.”

Appellee challenges the right of this court to consider this alleged error on the ground that such error, if any, occurred during the trial of the case, that there was no appeal from the judgment and verdict, and that the specification of error relied upon for reversal has no reference whatever to the court's order overruling the motion for new trial and motion for judgment notwithstanding the verdict. Appellee calls our attention to the fact that the verdict in this case was rendered October 31, 1931; that thereafter the appellants filed a motion for new trial and motion for judgment notwithstanding the verdict, which motions were overruled by the court on the 14th day of March, 1932; and that the notice of appeal, which did not include any appeal from the verdict and judgment, was filed on July 8, 1932. Appellee argues that, more than four months having elapsed from the date that verdict was rendered, and more than sixty days having elapsed from the date of the court's ruling on the motions for new trial and for judgment notwithstanding the verdict, no error committed during the trial of the case can be considered by this court on appeal. Appellee contends, moreover, that, the appeal in this case having been from the ruling on the motions for new trial and for judgment notwithstanding the verdict, any allegation of error relied upon for reversal must specify some error in connection with the court's ruling on such motions.

[1] It seems well established by the holdings of this court, however, that, where an error occurring during the trial of a case is set out as a ground in a motion for new trial, which is overruled by the trial court, such error can be reviewed upon an appeal from the order of the court denying such new trial, even though no appeal is taken from the judgment and verdict. Mueller Lumber Co. v. McCaffrey, 141 Iowa, 730, 118 N. W. 903;McElfresh v. McElfresh, 186 Iowa, 994, 173 N. W. 259;Frett v. Holdorf, 201 Iowa, 748, 206 N. W. 609. In Jahr v. Steffen, 187 Iowa, 168, 174 N. W. 109, 110, there was involved an appeal which had not been taken within six months (as then provided by statute) after entry of judgment, but within due time after the trial court's ruling on the motion for new trial. It appears that as a ground of the motion for new trial it was alleged that the trial court was in error in directing a verdict for the defendant at the close of plaintiff's testimony. No separate assignment of error seems to have been made in reference to the court's action in overruling the motion for new trial. In dealing with the situation thus presented, this court said: “Appellee urges that, as no error is assigned, the ruling on the motion for new trial is not reviewable. No separate assignment of error was made, but that complained of was stated at the beginning of what is denominated the brief and argument as follows: ‘The only error that can now be argued before the court is that attributable to the trial judge in directing a verdict at the close of plaintiff's testimony in favor of the defendants.’ This clearly states the only ruling of which complaint is or could have been made, for the appeal was taken more than six months after judgment, but within that time after the motion for new trial had been ruled on. See Mueller Lumber Co. v. McCaffrey, 141 Iowa, 730, 118 N. W. 903, to which decision the court adheres. It could not well have been stated in a more definite way, nor well have escaped attention where found.”

Directing our attention to the motion for new trial filed in the case now before us, we find as the sixth ground of such motion the statement: “That the court was in error to the prejudice of the rights of the defendants in overruling their motion for a directed verdict at the close of the introduction of evidence in this case.”

The alleged error of the trial court in overruling appellants' motion for a directed verdict was therefore before the trial court when considering and acting upon the motion for new trial, and the error, if any, of the trial court in overruling this ground of appellants' motion for a new trial is properly before this court for review. Keeney v. C., B. & Q. Ry. Co., 183 Iowa, 522, 167 N. W. 475.

Before directing our attention to the alleged error of the court in overruling appellants' motion for a directed verdict, it is necessary that we consider the circumstances of the accident out of which this action arose. Sheridan avenue runs east and west, and is the principal business street in Shenandoah, Iowa. The principal business section begins on the east side of a north and south intersecting street about a block and a half west of the Elk's Café, and extends about four blocks east. The first block of this business district as one goes east on Sheridan avenue is referred to in the record as the Delmonica Hotel block, and the next block to the east is referred to as the Theatre block. In the Theatre block the first building on the south side of Sheridan avenue east of the intersecting street is the Zenith Theatre; next east of that is McFarland's store; next east of McFarland's store is the State Theatre; and next east of the State Theatre is Anderson's store, and next east of Anderson's store is the Elk's Café. Sheridan avenue is 80 feet wide from property line to property line. The sidewalks in the business district are 12 feet wide, and the paved section of the street from sidewalk to sidewalk is 56 feet wide.

At the time of the accident in question, the south side of Sheridan avenue in the block in which the Elk's Café is situated was filled with parked cars which were parked at an angle of about forty-five degrees with the curb. It appears from the evidence that the north side of the street was also practically filled with parked cars, which were also parked at a similar angle. The parked cars occupied a space of approximately 14 1/2 feet from the curb to the rear of such cars. On the afternoon of May 31, 1931, George A. Spaulding was riding in the rear seat of his Studebaker sedan which was driven by his son-in-law, Duane Martin. This car had entered Shenandoah on primary highway No. 3, of which Sheridan avenue is an extension. When his car reached the block known as the Theatre block, George Spaulding directed the driver to stop so that he could go to a cigar store known as Hurd or Hindman cigar store to purchase some tobacco. This cigar store is on the north side of the street about opposite the Elk's Café. When the car reached a point in Sheridan avenue about opposite the east half of the Elk's Café, the driver stopped it with the right side about 1 1/2 or 2 feet from the rear ends of the parked cars on the south side of the street. Immediately upon the car being stopped, George Spaulding got out of the rear door on the right side, walked westward along the side of the car to the rear thereof, and then proceeded northward along the rear end of the car and two or three steps beyond the north side of the car, when he apparently saw appellants' car approaching from the west and stepped back toward the rear of his own car.

It appears from the evidence that the car owned by the appellant Willard D. Miller, and driven by his wife, Helena Miller, entered Sheridan avenue from the south on the intersecting street which runs along the west side of the Delmonico Hotel block, turned eastward and followed the Spaulding car. Both cars were traveling slowly as they went eastward, the evidence fixing their speed at from 7 to 12 miles per hour; one witness for appellee estimating the speed of the Miller car at 15 miles per hour. While thus going eastward, the Miller car continued at a distance of about 35 to 40 feet behind the Spaulding car until the latter stopped. As George Spaulding stepped out beyond the north side of the rear of his car, the driver of appellant's car first started to turn her car to her left, or toward the north, and then to her right, or south. Spaulding stepped back to the rear of his car, and had reached a point about a foot west of the north side thereof when appellants' car collided with him and crushed his legs between the rear bumper of the Spaulding car and the front bumper of appellant's car. As a result of the injuries received, George Spaulding died a few days thereafter, and this action was brought by his wife, as administratrix of his estate.

[2][3] The place where the Spaulding car was stopped and where George Spaulding attempted to cross the street was about 100 feet east of the intersection where pedestrians regularly crossed the street. There is some dispute as to the condition of the traffic on the street, some of appellee's witnesses stating that they saw no traffic at the time, while another of appellee's witnesses stated that “there were cars coming and going. As we entered the block down by the Delmonico Hotel we met cars frequently...