Westergard v. Des Moines Ry. Co., 47988

• Decision Date: 04 March 1952
• Docket Number: No. 47988,47988
• Citation: 243 Iowa 495,52 N.W.2d 39
• Parties: WESTERGARD v. DES MOINES RY. CO.
• Court: Iowa Supreme Court

Page 39

52 N.W.2d 39

243 Iowa 495

WESTERGARD v.DES MOINES RY. CO.

No. 47988.

Supreme Court of Iowa.

March 4, 1952.

D. Cole McMartin, and Herrick & Langdon, all of Des Moines, for appellant.

Dale S. Missildine, and J. W. Albert, of Des Moines, for appellee.

THOMPSON, Chief Justice.

About 11:30 p. m. on January 6th, 1949, a collision occurred between a pickup truck, owned and operated by plaintiff, and defendant's streetcar on the Seventh street viaduct in the city of Des Moines.Both the truck and streetcar were traveling north across the viaduct immediately before the collision.With the truck some distance in the rear of the streetcar both had climbed the south approach of the viaduct, crossed a level space of some hundreds of feet at the top, and as the streetcar reached the beginning of the down slope on the north it stopped, in accordance with practice and regulations of the company.Plaintiff crashed into the rear end of the streetcar, either while it was momentarily stopped or just as it got under way again.He claims the defendant was negligent in stopping its streetcar suddenly without warning directly in front of his truck, when the operator knew or should have known of the presence of traffic at the rear of said car.

Upon trial the jury returned a verdict for plaintiff.Defendant's motion for new trial was granted upon the sole ground of newly discovered evidence, and denied as to all other grounds.Plaintiff appeals from the ruling granting a new trial; defendant, having raised the questions by motions for directed verdict, by motion for new trial and by motion for judgment notwithstanding verdict, appeals from the trial court's refusal to hold plaintiff had failed to show any negligence of the defendant and to hold plaintiff had failed to show freedom from contributory negligence, each as a matter of law.We shall first consider plaintiff's appeal.

I, (a).The newly discovered evidence upon which defendant relied, and which the trial court found sufficient, consisted of affidavits of Thomas Freestone and Charles L. DeVore.They deposed that on the evening in question, as they were entering Freestone's automobile near the intersection of Seventh street and Clifton avenue, they saw the pickup truck driven by plaintiff turn from Clifton into Seventh, going up over the sidewalk as it did so and sideswiping the fender of an automobile parked nearby.Without stopping, the truck went north on Seventh street, crossing a bridge south of the viaduct and weaving from side to side.Affiants say they followed plaintiff, in order to stop him or to try to get his license number.The truck speeded up to about 50 miles per hour, and affiants followed at a distance of 50 to 70 yards.Because of the high speed of the truck and because it was weaving across the street they were afraid to try to stop it.Freestone, the driver, sounded his horn but plaintiff paid no attention.As the pickup truck started up the south incline of the viaduct it was traveling about 50 miles per hour.Affiants followed about 75 to 100 yards in the rear.When they reached the south crest of the viaduct they saw a streetcar stopped at the north crest.It was lighted and plainly visible.When the truck was about 150 yards from the streetcar it swerved to the left as if to pass on that side; then to the right, then when about 30 yards from the car, to the left again and struck the car in the rear.Affiants say they drove up on the left side of the truck immediately; that its left door had been opened by the force of the collision, and they saw plaintiff slumped in the seat, unconscious and evidently needing medical help and so they did not alight from their car, but after a momentary stop went on across the viaduct and to a garage which was open from where they summoned an ambulance.They then drove back to the scene of the accident and remained until the ambulance appeared.They say, however, that at no time did they give anyone their names; nor did they advise anyone of their knowledge of the facts until they read in a newspaper a verdict had been returned for the plaintiff herein.They then communicated with defendant's counsel and as a result made the affidavits which served as a basis for the granting of the new trial of which plaintiff complains.

A passenger on the streetcar, one Chris Helms, testified for the defendant that immediately prior to the collision he was siting so he could, and did, look to the rear, and he observed the lights of plaintiff's truck approaching about 100 feet away at the time the streetcar came to a full stop.He further said the truck was traveling at about 40 to 45 miles per hour, and it came straight on, without swerving, until it crashed into the rear of the streetcar.

The errors which plaintiff urges are that the evidence offered as newly discovered is unworthy of belief, it is at best merely cumulative, or impeaching, or both, and due diligence in discovering it is not shown.We think there is no merit in the claim the material statements contained in the affidavits are not credible, and shall not discuss them from that viewpoint further than to say we think there is nothing inherently unbelievable in them.A jury might or might not give them credence.Nor do we think there is substance in the complaint the evidence offered is wholly impeaching.Much of the evidence in any case necessarily impeaches the truth of that introduced by the opposing party; but it is also generally, as here, substantive and tends to prove the facts contended for by the offeror or to disprove the case made by the opposition.

I, (b).The important points raised by the plaintiff concern the questions of cumulative evidence and due diligence.We shall first consider the error predicated upon the thought that the trial court was in error in granting the motion for new trial, because the facts set forth in the affidavits above referred to would be cumulative only to other evidence already offered and admitted in the case.We have set forth the substance of the affidavits and the testimony of the witness Helms in some detail because of their importance in considering plaintiff's claimed error at this point.

Motions for new trials based upon newly discovered evidence are not favored in the law, and should be closely scrutinized and granted sparingly.Opposed to this rule in the instant case is another, which is that the trial court has considerable discretion in granting new trials, and its exercise of its judgment in such cases will be interfered with only when there is a manifest abuse of such discretion.And we will interfere less readily when it has granted the motion than when it has denied it.Maland, Adm'r v. Tesdall, 232 Iowa 959, 970, 5 N.W.2d 327, and cases cited.There must be an apparent abuse of discretion to warrant reversal of a ruling granting a new trial, and this applies to those granted because of new evidence discovered as well as in other cases.These rules are important, and the situation here must be considered with them in mind.We do not consider whether we would have acted as did the trial court; the only matter proper for our determination is, did that court abuse its discretion?This eliminates from our consideration a great number of the authorities dealing with the question of cumulative evidence as grounds for a new trial, since they are concerned with the question of whether the lower court properly refused to grant a new trial when it appeared the offered evidence was merely cumulative to that already in the case.If, in the case at bar, the trial court had denied a new trial upon that ground we would then have the converse of our present proposition; but he granted it, and the only question before us is whether he went beyond the bounds of a legal discretion in so doing.

Cumulative evidence is said to be evidence of the same kind and to the same point as that previously introduced.Larson v. Meyer & Meyer, 227 Iowa 512, 518, 519, 288 N.W. 663, quoting from 1 Green-leaf on Evidence, Sec. 2;Mullong v. Mullong, 178 Iowa 552, 159 N.W. 994.It is often difficult to say when the new evidence falls within these limits.In the instant case the substance of the affidavits offered here would, if admitted in evidence, be to a considerable degree of the same kind as that of the witness Helms, and it would likewise go largely to the same fact questions, which is to say, to the same point.We think, however, that the newly discovered evidence is not entirely or strictly cumulative.It goes somewhat farther and introduces some new details.But we also think the question is not of importance to us here.The test is not whether the offered newly discovered evidence is cumulative, but whether, cumulative or not, it is sufficient to justify the trial court, in the exercise of a legal discretion, in concluding there is a reasonable probability of a different result upon another trial.

We said in Maland v. Tesdall, supra, a new trial will not ordinarily be granted because of newly discovered evidence which is merely cumulative.However, the rule seems well established that the trier is within his proper discretion in granting a new trial, even upon cumulative evidence, if he determines a different result might probably be expected in view of the offered testimony.We said in Larson v. Meyer & Meyer, supra[227 Iowa 512, 288 N.W. 667.]: 'In a matter of this kind a large discretion is lodged in the trial court.* * * He had the witnesses before him, he could observe the reaction of the jury to their testimony, and was in a better position to judge of what another jury might do than we are able to do.'While in the case just cited a new trial was denied, the same reasoning applies when it has been granted.

The rule that the court may grant a new trial when the new evidence offered is cumulative only is a corollary to the one which gives the trial court a large discretion in determining whether a...