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Docket Number

No. 53671.

Advocates

O'Connor, Thomas, Wright, Hammer Bertsch, Dubuque, for appellant-cross appellee. Reynolds, Kenline, Roedell, Breitbach McCarthy, Dubuque, for appellee-cross appellant.

Judges

BECKER, Justice.

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Smart Summary

Case Summary: Mary D. Doser v. Interstate Power Company

Factual and Procedural Background

This is a personal injury action arising from a collision on January 23, 1967, between a bus operated by Interstate Power Company (a common carrier) and an automobile driven by Domitilla Cerjan at the intersection of Clarke Drive and Grandview Avenue in Dubuque, Iowa. Plaintiff Mary D. Doser boarded the bus shortly before 4:30 P.M., paid her fare, and was seated when the bus, traveling east on Clarke Drive, approached the intersection. Witness estimates of the bus speed ranged from 15–30 miles per hour; some witnesses testified the bus did not slow until braking immediately before impact. The Cerjan vehicle turned left directly in front of the bus; the bus' left front struck the right front of the Cerjan vehicle. Plaintiff was thrown from her seat and injured.

Procedurally, the case was tried to a jury which returned a verdict for plaintiff. Defendant's motion for judgment notwithstanding the verdict (JNOV) was overruled, but the trial court granted defendant's motion for a new trial. Both parties appealed: Interstate Power Company (appellant-cross appellee) raised two principal grounds on appeal, and plaintiff (appellee-cross appellant) contended the court should have entered judgment on the verdict rather than granting a new trial. The appeal is from the Dubuque District Court, Judge T.H. Nelson. The Supreme Court of Iowa affirmed the trial court's actions.

Legal Issues Presented

Whether a judgment notwithstanding the verdict should have been entered because the evidence, as a matter of law, showed the sole proximate cause of the collision was the negligence of the Cerjan driver and any negligence of Interstate was not proximate.
Whether the trial court erred in refusing defendant's requested instruction on the defense of sole proximate cause and thereby should have granted a new trial on that basis.
Whether the trial court erred in granting a new trial instead of entering judgment on the jury's verdict in favor of plaintiff (plaintiff's cross-appeal).

Arguments of the Parties

Appellant (Interstate Power Company) — Arguments

The court should have granted judgment n.o.v. because the evidence established, as a matter of law, that the collision was caused solely by the negligence of Domitilla Cerjan turning left in front of the bus; any alleged negligence by Interstate was not a proximate cause.
The trial court erred in refusing defendant's requested instruction on the defense of sole proximate cause; the court should have instructed the jury that if Cerjan's negligence was the sole proximate cause the verdict must be for defendant.

Appellee (Mary D. Doser) — Arguments

Plaintiff cross-appealed, contending the trial court should not have granted a new trial but instead should have entered judgment based on the jury's verdict in her favor.
At trial plaintiff relied on the court's existing instructions (including Instruction No. 7) to show the substance of what plaintiff must prove; plaintiff argued the omission of the specific "sole proximate cause" instruction was not prejudicial because other instructions conveyed the necessary principles (the court disagreed).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Jackson v. Brown	Standard for reviewing a motion for judgment notwithstanding the verdict: consider the evidence in the light most favorable to the plaintiff.	The court stated it would review the JNOV motion under this standard.
Mowrey v. Schulz	Authority where excessive speed was found to have no causal connection with an accident.	Defendant cited this case to argue bus speed was not causally connected to the collision; court considered it among other authorities.
Pettijohn v. Weede	Authority where excessive speed was found to have no causal connection with an accident.	Defendant cited this case to support its contention that bus speed was not a proximate cause.
Barnard v. Cedar Rapids City Cab Co.	Case considered closely in point on facts and principles relevant to carrier liability.	The court found this case analogous and relied on it in deciding that negligence issues were properly submitted to the jury.
Rozmajzl v. Northland Greyhound Lines	Explains that carriers for hire must exercise more than ordinary diligence, are liable for slight negligence, must foresee and guard against danger; passenger collision creates a prima facie case placing burden on carrier to show freedom from negligence.	The court relied on Rozmajzl to emphasize the high degree of care required of common carriers and to support submission of negligence issues to the jury.
Wilson v. Jefferson Transportation Company (citing Paulsen v. Haker)	Duty of driver on a statutory right-of-way: statutory right does not guarantee safety; driver must use reasonable care and make reasonable observations of surrounding circumstances, including intersecting traffic.	Used to support the proposition that a driver must keep a proper lookout and observe surrounding circumstances at intersections.
Paulsen v. Haker	The rule that the statutory right of way is not a guarantee of safety and the driver must make reasonable observations for his own safety and that of others.	Cited (via Wilson) to support the duty to keep a proper lookout and to observe surrounding traffic at intersections.
Adams v. Deur	Recent review of controlling principles relating to causation.	The court referenced this case as having recently reviewed causation principles and declined to repeat those principles in the opinion.
Federated Mutual Hardware Ins. Co. v. Dunkelberger	Recent review of controlling principles relating to causation.	Referenced as a recent causation review; court did not repeat the principles here.
Kuehn v. Jenkins	A party's theories that are supported by pleadings and substantial evidence must be submitted; failure to do so is prejudicial error.	Applied to conclude that the theories of the parties supported by evidence should be submitted to the jury and omission of such instruction may be prejudicial.
Greiner v. Hicks	The issue of sole proximate cause need not be specially pleaded to be available on final submission.	Used to support defendant's entitlement to a sole proximate cause instruction even though it was not specially pleaded.
Schall v. Lorenzen	Instructional requests need not be technically perfect; the court's attention must be fairly called to the problem. Also cited regarding appellate deference to trial court's new-trial rulings.	Applied to hold that the requested instruction on sole proximate cause should have been given if the court's attention was fairly called to it; also referenced in discussing the trial court's discretion in granting a new trial.
Erickson v. Thompson	An appellate court may consider the grant of a new trial even when the party did not properly object to the omission at trial.	Relied upon to support the proposition that the Supreme Court can consider the trial court's grant of a new trial despite defendant's failure to preserve the instruction objection by formal exception.

Court's Reasoning and Analysis

The court proceeded in structured steps:

Standard of Review for JNOV: The court reviewed the JNOV motion by viewing the evidence in the light most favorable to plaintiff, citing Jackson v. Brown.
Facts and Carrier Duty: The court recited the facts (bus as common carrier, location, bus speed estimates, Cerjan's left turn, skid marks, rapid development of the accident). It emphasized that common carriers owe a high degree of care to passengers and are liable for slight negligence, relying on Rozmajzl and related authorities.
Prima Facie Case and Burden: Citing Rozmajzl, the court noted that a passenger injured in a collision makes out a prima facie case, shifting to the carrier the burden to show freedom from negligence; the plaintiff need not prove a specific act of negligence.
Proximate Cause and Jury Submission: The court reiterated the general rule that proximate cause is usually a question for the jury, and recent authorities on causation were cited. Given the high degree of care required of carriers and the presented factual situation, the court concluded it was proper to submit plaintiff's specified negligence theories (failure to keep a proper lookout, failure to have the bus under control, excessive speed) to the jury rather than decide as a matter of law that defendant's negligence was not proximate.
Instruction on Sole Proximate Cause: The court examined defendant's requested instruction on sole proximate cause, which was refused by the trial court. It held that where a party's theory is supported by the pleadings and substantial evidence and the court's attention has been fairly called to the need for an instruction, the theory must be submitted. The court concluded the trial court should have given an instruction on sole proximate cause on retrial and that mere imperfect wording of the requested instruction would not excuse the omission if the issue had been adequately called to the court's attention.
Grant of New Trial: The trial court had granted a new trial because Instruction No. 11 omitted the proposition that an operator may assume others will obey the law; the trial court found this omission prejudicial in view of defendant's contention that the cause was an unanticipated move by a third party. The Supreme Court noted the broad discretion trial courts have in ruling on motions for new trial and that the court will be slower to interfere with a grant of a new trial than with a denial. The Supreme Court held the trial court's conclusion that the omission was prejudicial and that a new trial should be granted was within its discretion.

Holding and Implications

Holding: The Supreme Court of Iowa affirmed the trial court's rulings on both appeals.

Implications and direct effects:

The jury-submissible negligence issues (failure to keep a proper lookout, failure to have the bus under control, and excessive speed) were properly submitted given the facts and the higher duty of care owed by a common carrier.
The trial court's refusal to give defendant's requested instruction on sole proximate cause was error; on retrial the defendant is entitled to an instruction on sole proximate cause, and plaintiff is entitled to an instruction on concurrent proximate causes as appropriate. How the instruction is worded remains within the trial court's discretion.
The trial court did not abuse its discretion in granting a new trial based on the prejudicial omission in Instruction No. 11 concerning the operator's right to assume others will obey the law.
Costs on appeal are to be borne equally by the parties, except each party shall bear its own printing costs for briefs and arguments.

Disposition: Affirmed.

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Mary D. DOSER, Appellee-Cross Appellant, v. INTERSTATE POWER COMPANY, a corporation, Appellant-Cross Appellee.

BECKER, Justice.

This is a personal injury action growing out of a collision between an automobile and a bus which was operated by Interstate Power Company as a common carrier. The case was tried to a jury which returned a verdict for plaintiff. Defendant's motion for judgment notwithstanding the verdict was overruled but its motion for a new trial was granted. Both sides appeal. We affirm on both appeals.

Defendant Interstate's appeal urges two grounds. First, it contends a judgment n.o.v. should have been granted because the evidence showed as a matter of law that the sole proximate cause of the collision was the negligence of Domitilla Cerjan, operator of the other vehicle, and the negligence of Interstate, if any, was not proximate. Second, it contends the motion for a new trial should have been granted because the court failed to instruct on defendant's defense of sole proximate cause despite defendant's request for such an instruction.

Plaintiff cross-appeals claiming the court should not have granted a new trial but should have entered judgment based on the verdict.

I. In reviewing the trial court's ruling on motion for judgment notwithstanding the verdict, we consider the evidence in the light most favorable to plaintiff. Jackson v. Brown (Iowa), 164 N.W.2d 824.

Defendant operates the public bus system in Dubuque, Iowa. Shortly prior to 4:30 P.M., January 23, 1967, plaintiff boarded one of defendant's buses, paid her fare and took her seat. As the bus proceeded east on Clarke Drive it approached Grandview Avenue, an intersecting street. The speed of the bus as it approached the intersection was variously estimated from 25 to 30 miles per hour (plaintiff's witnesses), to 15 to 20 miles per hour (defendant's bus driver). Plaintiff's witnesses testified the bus did not slow down at any time prior to application of the brakes immediately before impact.

As the bus approached the intersection, the Cerjan vehicle approached the intersection from the opposite direction. The driver and at least three passengers saw the approaching car at about the same time. All witnesses agree the Cerjan car turned directly in front of the bus. The driver applied his brakes and laid down six feet of skid marks, apparently about half of those marks occurred after impact.

Immediately prior to the collision, Mr. Voss, a passenger, saw the accident developing and had time to brace himself. A young boy jumped out of his seat before the brakes were applied but "couldn't hold on" when the brakes were applied. Plaintiff said she saw the car turning in front of the bus and attempted to grab something but it was too late. She was thrown out of her seat and injured. The accident developed very quickly, two or three seconds at most. The left front of the bus collided with the right front of the Cerjan vehicle.

Mr. Voss testified as to the type of intersection involved: "* * * As the bus approached the intersection of North Grandview and Clarke Drive, there were cars going both ways. It was quite busy at that time. Yes, there also were pedestrians in the area, people from Senior High School waiting for the bus, and I think it was around 3:30 p.m. In regard to lighting conditions, it was light, it wasn't dark. They didn't need headlights or anything like that. The surface of the road was dry." The bus driver testified he was familiar with the intersection. The exhibits show the intersection is in the close vicinity of Senior High School and has a posted 25 mile speed limit.

II. The court submitted failure to keep a proper lookout, failure to have the bus under control and excessive speed as issues of negligence. Defendant argues the accident was solely due to the Cerjan car improperly turning left in front of the bus. The collision would have occurred regardless of the speed of the bus. It cites cases where this court has found excessive speed had no causal connection with the accident. Mowrey v. Schulz, 230 Iowa 102, 296 N.W. 822 (1941); Pettijohn v. Weede, 209 Iowa 902, 227 N.W. 824 (1929).

We find Barnard v. Cedar Rapids City Cab Co., 257 Iowa 734, 133 N.W.2d 884, and Rozmajzl v. Northland Greyhound Lines, 242 Iowa 1135, 1139, 49 N.W.2d 501, to be more closely in point both from the standpoint of the facts and the principles involved. In Rozmajzl v. Northland Greyhound Lines at pages 1139-1140 of 242 Iowa, at page 504 of 49 N.W.2d, we said: "A carrier of passengers for hire must exercise more than ordinary diligence for their protection. Its duty stops just short of insuring their safety. It is bound to protect its passengers as far as human care and foresight will go and is liable for slight negligence. (cases cited). See also 13 C.J.S. Carriers section 678a; 10 Am.Jur., Carriers, section 1246; Annotation 69 A.L.R. 980. `* * * the high degree of care must be exercised in foreseeing, as well as in guarding against, danger.' Murray case, supra.

"Plaintiff made a prima facie case by showing she was injured while a passenger on the bus by a collision between the bus and the automobile. This cast upon defendants the burden to show their freedom from negligence in causing the collision. Plaintiff was not bound to prove any particular act of negligence by defendants. (cases cited).

"The authorities make it plain it is usually a question for the jury whether such a prima facie case has been met. We do not think defendants succeeded in rebutting the prima facie case here so conclusively that they were entitled to a directed verdict."

In Wilson v. Jefferson Transportation Company, Iowa, 163 N.W.2d 367, 371, we cited Paulsen v. Haker, 250 Iowa 532, 95 N.W.2d 47, 51-52: "`The true rule is that the statutory right of way is not a guarantee of safety, but that the driver on the protected road must use reasonable care under the existing circumstances for his own safety and that of others. Likewise, in connection with the duty to keep a proper lookout, we think it is his duty to make reasonable observation of all surrounding circumstances, including intersections and other traffic which may be in fair view on intersecting roads, and to use such care as an ordinarily prudent man would do in the light of everything disclosed by such observations.'"

The question of proximate cause is usually to be decided by the jury. Rules of Civil Procedure, No. 344(f) (10). We have recently reviewed the controlling principles in relation to causation in Adams v. Deur, (Iowa) 173 N.W.2d 100, (opinion filed December 9, 1969) and Federated Mutual Hardware Ins. Co. v. Dunkelberger, (Iowa) 172 N.W.2d 137, (opinion filed November 12, 1969). We need not repeat those principles here.

Given the high degree of care demanded of common carriers and the factual situation presented, we hold the court was correct in submitting the various specifications of negligence to the jury.

III. Defendant's second point is properly raised because it becomes important in event of a retrial. The trial court instructed the jury on the definition of proximate cause, the fact a proximate cause need not be the sole and only cause of damage or injury, and the concept that where the negligence of two or more persons concur to cause injury the negligence of each is a proximate cause. Defendant's requested Instruction No. 1 stated that in the event the jury found the negligence of Domitilla Cerjan was the sole proximate cause of the injuries and damages then the jury's verdict must be for defendant. The court refused instruction and did not instruct on sole proximate cause.

The theories of both parties to a lawsuit, as far as they are supported by the pleadings and substantial evidence, must be submitted and it is prejudicial error to fail to do so. Kuehn v. Jenkins, 251 Iowa 718, 730, 100 N.W.2d 610. The issue of sole proximate cause need not be specially pled as a defense to be available to defendant on final submission. Greiner v. Hicks, 231 Iowa 141, 300 N.W. 727. The court's attention was called to the need for such an instruction. It was not necessary to instruct in the exact phraseology employed by the requested instruction but an instruction on sole proximate cause should have been given in light of all the evidence in the case. The question is not whether the requested instruction was technically perfect but whether the attention of the court has fairly been called to the problem. Schall v. Lorenzen, Iowa, 166 N.W.2d 795, 798.

We are not convinced this omission is cured by other instructions. Plaintiff points to Instruction No. 7 as giving the substance of defendant's request. We disagree. Instruction No. 7 tells the jury what plaintiff must prove in order to recover. It says nothing about the various problems raised by the terms, a proximate cause, concurrent causes and sole proximate cause. These concepts are explained, except as to the latter, in other instructions. On resubmission defendant is entitled to have an instruction on sole proximate cause; just as plaintiff was here entitled to an instruction on concurrent proximate causes. How the instruction is handled is, of course, within the sound discretion of the court.

IV. Plaintiff contends the trial court erred in granting a new trial. In its ruling the court observed:

"The Instruction No. 11, for some reason which the Court cannot understand, fails to advise the jury that the operator of the vehicle is entitled to assume that all others using the highway will obey the law. Failure to include this portion of the law in the instruction or anywhere else in the instructions, is, of course, clearly error even though defendant was a public service vehicle. The fact that defendant was claiming that the cause of the accident was an unanticipated move by a third party and that third party's failure to signal for a left turn, appears to make the error prejudicial. Defendant did not properly except to the instruction on this ground or properly preserve his objection and the Supreme Court, it would appear from their previous decisions, would be powerless to consider this claim of error on appeal but it can and should be considered on motion for a new trial. It would appear to the Court that where the Court has erred and the error is clearly prejudicial that it would be an abuse of discretion not to grant a new trial."

Instruction 11 deals with control and ability to stop in the assured clear distance ahead.

The ruling requires very little elaboration here. The trial court has broad discretion in passing on a motion for a new trial. Schall v. Lorenzen, supra. We are slower to interfere with the grant of a new trial than with its denial. Rule 344(f) (4), R.C.P.

Here the concept the operator of the vehicle has the right to presume, within certain limits, that others will obey the law was a particularly important matter. The court's conclusion the inadvertent error was prejudicial was well within its discretion. The fact defendant did not object to failure to include the omitted concept in the instructions does not prevent this court from considering whether the grant of a new trial was an abuse of discretion. Erickson v. Thompson, 257 Iowa 781, 791, 135 N.W.2d 107.

In view of the disposition of this case, costs on appeal shall be borne equally by the parties, except for costs of printing briefs and arguments. As to those documents each party shall bear his own printing costs.

Affirmed.

All Justices concur.

DOSER v. INTERSTATE POWER COMPANY