Torrence v. Sharp

• Decision Date: 12 January 1955
• Docket Number: No. 48634,48634
• Citation: 246 Iowa 460,68 N.W.2d 85
• Parties: Mrs. Jack TORRENCE, Appellee, v. Lloyd SHARP and Alfred C. Snyder, Appellants.
• Court: Iowa Supreme Court

Page 85

68 N.W.2d 85

246 Iowa 460

Mrs. Jack TORRENCE, Appellee, v. Lloyd SHARP and Alfred C. Snyder, Appellants.

No. 48634.

Supreme Court of Iowa.

Jan. 12, 1955.

Steward & Crouch, Des Moines, William S. Johnston, Esterville, for appellant Sharp.

Hansen & Wheatcraft, Des. Moines, for appellant Snyder.

Lex Hawkins, J. R. McManus, Des Moines, for appellee.

HAYS, Justice.

Action for damages arising out of a collision involving three automobiles being driven by plaintiff and defendants Sharp and Snyder respectively.

The original action was against Sharp. On his motion, Snyder was brought into the case as a defendant to Sharp's cross-petition. Plaintiff, by amendment to her petition, joins Snyder as a defendant. It was tried to a jury with a verdict for $1,250 for plaintiff and against each defendant. There was a verdict for defendant Snyder on Sharp's cross-petition. The trial court granted plaintiff a new trial as against Sharp and Snyder on the ground that the verdict was inadequate. It denied Sharp a new trial as against Snyder. Sharp and Snyder have appealed from the judgment granting plaintiff a new trial. Sharp has appealed from the judgment denying a new trial on his cross-petition against Snyder. In effect, two distinct law actions are involved in this appeal.

Since no issue of negligence or causation is presented here, a very brief factual statement will suffice. Plaintiff was driving north on Highway 69, and following the Snyder car. At a point slightly north of the Des Moines City limits and opposite the Evans Hatchery, Snyder made a sudden left turn across the pavement. At the time, the Sharp car was approaching from the north with a resulting collision involving all three cars.

I. We will first consider Sharp's appeal from the denial of a new trial on his cross-petition against Snyder.

(1) Error is assigned in the admission into evidence of certain photographs. They were taken some time after the accident but are conceded to fairly represent the general topography of the site of the accident as of the time thereof. It appears, however, that certain of the pictures reveal cars, presumably posed in accord with defendant Snyder's version of the situation. Conceding these photographs were posed, this does not render them objectionable if proper foundation has been laid as to the similarity as of the time of the accident, and we think the court could have found sufficient foundation under this record. Dice v. Johnson, 198 Iowa 1093, 199 N.W. 346; State v. Ebelsheiser, 242 Iowa 49, 43 N.W.2d 706, 19 A.L.R.2d 865; Annotations, 27 A.L.R. 913; 19 A.L.R.2d 877. However, be it as it may as to the foundation, the trial court in admitting the pictures specifically told the jury that the vehicles appearing therein were not to be considered as any evidence of the location of any vehicles at the time of the accident. Presumably, juries follow the court's instructions. Conley v. Lowden, 234 Iowa 731, 12 N.W.2d 870; Christensen v. Boucher, 237 Iowa 1170, 24 N.W.2d 872. This assignment is without merit.

(2) Snyder was asked about the speed of the Sharp car. After several answers had been stricken as conclusions, he was asked: 'Q. Well, what I have in mind is this: did you notice whether or not it was going a slow rate, ordinary rate, or high rate?' Objection that it called for a conclusion overruled. 'A. A high rate of speed.' The ruling was correct. In Payne v. Waterloo, C. F. & N. Ry. Co., 153 Iowa 445, 454, 133 N.W. 781, 784, we said: 'It is not necessary that a witness should be an expert in order to testify as to rate of speed. * * * Nor is it necessary that a witness should state his opinion in miles per hour. The opinion of a witness in such a case is a mere approximation in any event.' See also: McLaughlin v. Griffin, 155 Iowa 302, 135 N.W. 1107; Slabaugh v. Eldon Miller, Inc., 244 Iowa 29, 55 N.W.2d 528. Seager v. Foster, 185 Iowa 32, 169 N.W. 681, 8 A.L.R. 690, cited by appellant, is not similar to the instant situation and even so, the error in admitting was held to be without prejudice.

(3) Snyder was asked: 'Q. When you started across the pavement did you think it was safe to cross?' Objected to as opinion and conclusion. Overruled. 'A. Yes, I had a very large opening.' This is claimed to be error. We think not. In Pooley v. Dutton, 165 Iowa 745, 147 N.W. 154, we held a person may testify directly to his intent, motive or reasons inducing his action where such was material even though it partakes of the nature of a conclusion. It was clearly material here. Section 321.314, Code of 1950, I.C.A.; Boice v. Des Moines City Ry. Co., 153 Iowa 472, 133 N.W. 657; Yeager v. Incorporated Town of Spirit Lake, 115 Iowa 593, 88 N.W. 1095.

(4) Appellant Sharp also asserts error in the granting of a new trial to plaintiff and denying one on the cross-petition against Snyder on the general claim that thus a new trial is given as to only a part of the issues.

This appeal does not present the questions existent where a defendant has filed a counterclaim against the plaintiff. In such cases a new trial, at least ordinarily, must be granted to none or to both. Hayungs v. Falk, 238 Iowa 285, 27 N.W.2d 15; Keller v. Gartin, 220 Iowa 78, 261 N.W. 776; Larimer v. Platte, 243 Iowa 1167, 53 N.W.2d 262. The question here is more analogous to where several causes of action are tried together by separate counts. New trial to some counts and not as to others may properly be granted. Seevers v. Cleveland Coal Co., 166 Iowa 284, 147 N.W. 761.

In granting plaintiff a new trial, the trial court stated the verdict was so inadequate as to indicate that the jury became confused and neglected to follow the instructions. Appellant Sharp contends that a failure to follow instructions invalidates both verdicts. Assuming such a 'failure' here, appellant's contention does not necessarily follow.

The trial court considered the case to consist of at least two distinct law actions and so instructed. No confusion or disregard of instructions pertaining to liability is claimed. On plaintiff's cause of action the jury found liability, under the instructions. If confusion existed, it was in their next step; i. e., assessment of damages. On Sharp's cross-petition, the jury found no liability and hence no...