Thomas v. Ill. Cent. R. Co.

• Citation: 169 Iowa 337,151 N.W. 387
• Decision Date: 11 March 1915
• Docket Number: No. 29891.,29891.
• Parties: THOMAS v. ILLINOIS CENT. R. CO.
• Court: Iowa Supreme Court

169 Iowa 337

151 N.W. 387

THOMAS

v.ILLINOIS CENT. R. CO.

No. 29891.

Supreme Court of Iowa.

March 11, 1915.

Appeal from District Court, Webster County; C. E. Albrook, Judge.

Action at law to recover damages for the death of Flossie Mericle, due to the collision of an automobile in which she was riding with a passenger train on defendant's road. The case was tried to a jury, resulting in a verdict for defendant, which on plaintiff's motion was set aside, and a new trial granted, and defendant appeals. Affirmed.M. J. Mitchell and Helsell & Helsell, all of Ft. Dodge (Blewett Lee and W. S. Horton, both of Chicago, Ill., of counsel), for appellant.

Healy, Burnquist & Thomas, of Ft. Dodge, for appellee.

DEEMER, C. J.

The negligence charged was the dangerous and excessive rate of speed of the train; failure to maintain gates or to have a watchman at the crossing where plaintiff's intestate was killed; the maintenance of a defective approach and grade to the crossing; failure to sound the bell or blow the whistle of the engine as it approached the crossing; and the placing of cars upon a side track, so as to obstruct the view of an approaching train. Defendant admitted the collision and the death of Miss Mericle, but denied each and all the allegations of negligence. The trial court submitted but two of the alleged grounds of negligence, to wit, the excessive rate of speed of the train, and the alleged failure to sound the bell or blow the whistle as the engine approached the crossing. As already stated, the verdict was for the defendant, and plaintiff filed a motion for a new trial based upon 28 or more grounds. The trial court, while pointing out in its ruling several specific reasons for granting the motion, sustained it generally, and did not overrule any of the grounds stated as a basis for the motion.

[1] In this state of the record, it is the rule of this court not to disturb the ruling, if any of the grounds were tenable. Van Wagenen v. Parsons, 106 Iowa, 263, 76 N. W. 675;Holman v. R. R. Co., 110 Iowa, 485, 81 N. W. 704;Boyd v. Telephone Co., 117 Iowa, 338, 90 N. W. 711.

[2] One of the grounds of the motion was that the verdict was contrary to the evidence, and the court indicated in its ruling that this ground was well taken. Such being its holding, appellate courts are loath to interfere; for the trial court is vested with a large discretion in such matters and it is its duty to interfere whenever it believes that injustice has been done. As said in many of our cases, “it must be a clear case indeed to warrant an appellate court in interfering with its action.” Moran v. Harris, 63 Iowa, 390, 19 N. W. 278;Morgan v. Wagner, 79 Iowa, 174, 44 N. W. 345;Hopkins v. Knapp, 92 Iowa, 212, 60 N. W. 620; Holman v. R. R. Co., supra; Maynard v. City, 159 Iowa, 126, 140 N. W. 208;Eggert v. Interstate Co., 146 Iowa, 481, 125 N. W. 246;Royer v. Plaster Co., 147 Iowa, 277, 126 N. W. 168;Holland v. Kelly, 149 Iowa, 391, 128 N. W. 338;Andrews v. R. R. Co., 151 Iowa, 166, 130 N. W. 918;Crider v. McColley, 154 Iowa, 671, 135 N. W. 364;Porter v. Bank, 155 Iowa, 617, 136 N. W. 666;Post v. Dubuque, 158 Iowa, 224, 139 N. W. 471;Smith v. Smith, 160 Iowa, 111, 140 N. W. 659;Woodbury County v. Dougherty, 143 N. W. 417;Werthman v. R. R. Co., 128 Iowa, 135, 103 N. W. 135;Van Wagenen v. Parsons, 106 Iowa, 263, 76 N. W. 675.

[3][4] It is useless to do more than cite these cases, for they so firmly establish the rules stated that quotation therefrom is entirely useless. Appellant does not argue many of the propositions involved in the motion for a new trial; and we might stop here with the remark that we are not required, in the absence of argument, to find that each and all of the grounds for the new trial were not tenable. The nature of the argument is such, however, that we have concluded to refer to some of the specific propositions involved. The trial judge, in giving the reasons for his conclusion, stated that in his judgment instructions Nos. 5, 8, X, Xa, XI, XIa, XIb, given to the jury, were erroneous or misleading, and that another, which he had prepared and submitted to counsel for defendant, and which was seriously objected to by them, and which was for that reason not given, should have been included in the charge and read to the jury. Instructions Xa, XIa, XIb were read to the jury without being submitted to plaintiff's counsel, and were not read by them until after they were given to the jury, and they had no opportunity to object or to except thereto. They did complain of them in the motion for a new trial, and the trial court thought the complaints were good. Chapter 289, Acts 35th G. A., provides that:

“All requests for instructions must be presented to the judge before the argument to the jury is commenced and before reading his charge to the jury. The judge, before reading his charge to the jury, shall present all instructions to counsel on either side, each of whom shall have a reasonable time in which to examine the same. All objections or exceptions thereto must be made before the instructions are read to the jury and must point out the grounds thereof specifically and with reasonable exactness; but upon a showing in a motion for a new trial that an error in such instructions was not discovered by the party claiming the error at the time of trial, such objections or exceptions may be made in the same manner in such motion for a new trial and no other objection or exception to the instructions shall be considered by the Supreme Court on appeal, except those made as above provided. The objections or exceptions must point out specifically the exact grounds thereof, and no other objections or exceptions shall be considered by the trial court upon motion for a new trial or otherwise, or by the Supreme Court upon appeal.”

It is quite clear that even under this provision, counsel may object and except to instructions given by a trial court in a motion for a new trial, whenever the trial court denies them the right to see the instructions before they are read to the jury; and it is also clear that if the trial court is led by counsel's objections to an instruction which it proposes to give into an error, it may correct that error on motion for a new trial; and to our minds it is equally clear that notwithstanding the statute quoted, the court has inherent power to order a new trial for any palpable error committed by it, or by the jury, even in the absence of a motion for a new trial.

The judge is something more than a mere moderator. He has certain duties to perform, and when convinced that errors have been committed which resulted in a palpable miscarriage of his justice, it is his province, as well as his duty, to interfere and to grant a new trial. Hensley v. Davidson, 135 Iowa, 106, 112 N. W. 227, 14 Ann. Cas. 62;Allen v. Wheeler, 54 Iowa, 628, 7 N. W. 111. See, also, Forbes v. Insurance Co., 178 Mass. 139, 59 N. E. 636;Ft. Wayne & R. R. Co. v. Donovan, 110 Mich. 173, 68 N. W. 115;Willmar Bank v. Lawler, 78 Minn. 135, 80 N. W. 868;Weber v. Kirkendall, 44 Neb. 766, 63 N. W. 35;Ellis v. Ginsburg, 163 Mass. 143, 39 N. E. 800.

In Allen's Case, supra, this court said:

“Having found that the instruction above set out was correct, and the first verdict having been in plain violation thereof, it was the duty of the court to set the verdict aside. The appellant insists that the court could not do this on its own motion, because section 2837 of the Code [1873] provides that a verdict may be vacated ‘on the application of the party aggrieved.’ This does not provide that the court may not, upon its own motion and for error which is apparent, set aside a verdict. Such power exists at common law, and we do not understand that any provision of our statute is a limitation of the power of the court on its own motion to compel juries to observe and follow the law as embodied in the instructions given by the court.”

And in Hensley's Case, supra, we said:

“Our statute enumerates the grounds on which new trials shall be granted on application of the aggrieved party. Section 3755, Code. But there is no provision in the Code relating to orders of this kind on the court's own motion. That such right exists, however, is indisputable. It is one of the inherent powers of the court essential to the administration of justice. In Rex v. Gough, 2 Doug. 791, Lord Mansfield declared that, even though too late for a motion, if enough appeared, the court could grant a new trial, and in Rex v. Atkinson, 5 Term. R. 437, note, is quoted as saying that, though too late for a motion, ‘if the court conceive a doubt that justice is not done, it is never too late to grant a new trial.’ In Rex v. Holt, 5 Term. R. 436, Lord Kenyon said he well remembered Rex v. Gough, ‘where the objection to the verdict was taken by the court themselves,’ and Buller, J., observed, in concurring, that ‘after four days the party could not be heard on motion for new trial, but only in arrest of judgment, but if, in the course of that address, it incidentally appear that justice has not been done, the court will interpose of themselves.’ In Weber v. Kirkendall, 44 Neb. 766, 63 N. W. 35, it is said that the power of courts of general jurisdiction, in the correction of errors committed by them, ‘is exercised, not alone on account of their solicitude for the rights of litigants, but also in justice to themselves as instruments provided for the impartial administration of the law.’ And such is the view generally entertained by the courts in this county. Allen v. Wheeler, 54 Iowa, 628 ;Ellis v. Ginsburg, 163 Mass. 143, 39 N. E. 800;Stanard Milling Co. v. White Line Transit Co., 122 Mo. 258, 26 S. W. 704;State ex rel. Henderson v. McCrea, 40 La. Ann. 20, 3 South. 380;Bank of Willmar v. Lawler, 78 Minn. 135, 80 N. W. 868;Com. v. Gabor, 209 Pa. 201, 58 Atl. 278; Thompson, Trials, 2411; State ex rel. Brainerd v. Adams, 84 Mo. 310.

In the last case the court, in upholding...