Utseth v. Pratt-Mallory Co.
| Citation | 227 N.W. 115,208 Iowa 1324 |
| Decision Date | 22 October 1929 |
| Docket Number | 39890 |
| Parties | JOHN UTSETH, Appellant, v. PRATT-MALLORY COMPANY, Appellee |
| Court | United States State Supreme Court of Iowa |
Appeal from Woodbury District Court.--ROBERT H. MUNGER, Judge.
Action for damages resulting from a collision of motor vehicles at a street intersection. The case was tried to the court without a jury, and resulted, in the first instance, in a judgment for the plaintiff. Thereafter, within the statutory time, the defendant moved for a new trial, and the motion was sustained. From the order of the court granting a new trial the plaintiff has appealed.
Affirmed.
Naglestad Pizey & Johnson, for appellant.
Stewart & Hatfield, for appellee.
EVANS J. ALBERT, C. J., and FAVILLE, DE GRAFF, and GRIMM, JJ., concur. KINDIG, J., takes no part.
The motion for a new trial was predicated upon many grounds. One of the grounds was newly discovered evidence, and we need consider no other. The case was purely a fact case. The accident occurred in daylight, on October 27, 1927, in Sioux City, at the intersection of Fourth Street (running east and west) and Jennings Street (running north and south). The plaintiff approached the intersection from the west. driving along the south side of Fourth Street. His claim was that the defendant's vehicle approached the intersection from the east, driving along the north side of the same street; that the defendant turned southerly into Jennings Street by "cutting the corner" at the southeast of the intersection, whereas he ought to have proceeded west on the north side of the center of the intersection and then turned south on the west side thereof. The claim of the plaintiff is that, by "cutting the corner," the vehicle of the defendant passed suddenly in front of him, whereby he collided with its rear wheels. The contention of the defendant was that he did not approach the intersection from the east, but from the north, while driving along the west side of Jennings Street. On this question the witnesses were few in number on each side.
In support of the motion for a new trial on the ground of newly discovered evidence, the defendant attached the affidavits of several witnesses in support of his contention on the particular issue stated. The evidence was material. Whether sufficient diligence had been shown to procure the same was a question peculiarly within the observation and discretion of the district court. The whole question of granting a new trial was...
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