Jettre v. Healy

60 N.W.2d 541, 245 Iowa 294, 1953 Iowa Sup. LEXIS 450
CourtSupreme Court of Iowa
DecidedOctober 20, 1953
Docket48363
StatusPublished
Cited by32 cases

This text of 60 N.W.2d 541 (Jettre v. Healy) is published on Counsel Stack Legal Research, covering Supreme Court of Iowa primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jettre v. Healy, 60 N.W.2d 541, 245 Iowa 294, 1953 Iowa Sup. LEXIS 450 (iowa 1953).

Opinions

Larson, J.

— In an action for damages on account of the death of plaintiff’s decedent as a result of a collision between a [296]*296gravel truck operated by ■ plaintiff’s decedent and a Chevrolet automobile owned and operated by defendant’s decedent, the jury returned a verdict for plaintiff in the sum of $20,000. Defendant appealed upon the overruling of a motion for a new trial by the trial court. We shall refer to the parties as plaintiff and defendant herein.

Defendant assigns three errors as a basis for reversal, two of which relate to the credibility of a witness, and the third to the amount of damages. Defendant also claims error by the trial court for refusing a new trial upon these grounds.

Briefly, the facts disclosed by the record are as follows:

At an intersection of Crawford County Road K, which is a gravel north-and-south road, about 24 feet wide, and an unimproved, undesignated east-and-west road, some five or six miles north of Vail, Iowa, the gravel truck operated by plaintiff’s decedent collided with a Chevrolet automobile driven by defendant’s decedent. Both drivers were alone and were instantly killed. The intersection was at the bottom of two hills, the crest of which toward the south was some three blocks, and toward the west was a little less distant, but not as steep. There was a stop sign on the east-west road west of the intersection, and most of this dispute centers on whether or not defendant’s decedent stopped before entering the intersection where the accident occurred. There was one eyewitness, Godfrey Preuss, a farmer residing on a farm, the dwelling of which is some 20 rods north and east of the intersection. It appears, according to his testimony, that he and Mrs. Preuss were cleaning or fixing the family car about 5 o’clock p.m. on the 27th of August, 1951, when his attention was called to the approaching vehicles; that he observed the car driven by defendant’s decedent first, and later the truck driven by plaintiff’s decedent; that he saw them come together, turn over, and land in the ditch north and east of the intersection; that the defendant’s decedent did not stop at the stop sign, was driving about 15 or 20 miles per hour when entering the intersection, and that the truck was going about 50 miles per hour until just before the crash when its brakes were applied. Various pictures were received in evidence by stipulation showing the intersection and approaches from various angles. It was testimony concerning the observa[297]*297tion of witness Preuss that defendant complains of and assigns one claim of error. Plaintiff’s decedent, thirty years of age, was employed as a truck driver and equipment man, was married, and had one child. Defendant’s decedent was a retired farmer and a bachelor sixty-two years of age.

I. Defendant contends that the verdict was the result of false testimony on a material matter by the eyewitness, Preuss, knowingly used by plaintiff, and that the trial court abused its discretion in not granting a new trial on account thereof. This contention is based on what defendant maintains is a change in his testimony from that given on the first trial of this case, in which trial the jury disagreed. The testimony of witness Preuss in this trial was that he watched the car driven by Joe Healy, the defendant’s decedent, continually as it approached the intersection, and that except when it went behind a tree in the pasture it was never out of his sight. Upon cross-examination he was asked if in the first trial he did not state in the cross-examination as follows:

“Q. And from that time on you could see the car all the way ? A. Up to the stop sign. Q. And then is when you took your eyes off from it and saw the truck coming? A. Just a second, yes. Q. I assume you looked back and saw the car again then? A. Yes, I glanced back. Q. And at that time the car was east of the stop sign, was it not ? A. Yes.”

When asked if he remembered those questions and answers, he stated: “I must have been confused at that time”, and “I claim, in spite of my previous testimony, that I didn’t take my eyes off the car any time after I first saw it.” Witness Preuss maintained this position throughout vigorous cross-examination before the jury and again in the hearing held on the motion for a new trial before the court.

In the first place there are grave doubts in our minds that the testimony of this witness was changed, but be that as it may, it is the testimony in the last trial that concerns us, especially when the alleged contradiction in testimony was called to the attention of the jury, as it was here. We have said that in the first instance there is a presumption that the witnesses are truthful. Windahl v. Hasselman, 198 Iowa 1001, 1005, 200 N.W. 583. [298]*298Also that the testimony of a witness is to be judged as a whole even if it is contradictory and conflicting, and that it is for the jury to pass upon under proper instructions from the court. In reality, the question here becomes one of impeachment. It is, therefore, the jury’s duty to say whether the testimony has been successfully impeached or not. McVay v. Carpe, 238 Iowa 1131, 1140, 29 N.W.2d 582; Mohn v. Mohn, 181 Iowa 119, 164 N.W. 341; Daggy v. Miller, 180 Iowa 1146, 162 N.W. 854; Holden v. Hanner, 231 Iowa 468, 1 N.W.2d 671; Thompson v. Butler, 223 Iowa 1085, 274 N.W. 110; IX Wigmore on Evidence, Third Ed., sections 2588-2595.

We passed on such a situation in the case of Hess v. Dicks, 192 Iowa 378, at 382, 184 N.W. 742, at 744, where we said: “Then follow questions on cross-examination as to testimony given by Dicks at the former trial, which we understand appellant to claim was somewhat at variance, at some points, with his testimony on the last trial. But we have held that the testimony on the last trial was the testimony, and the other simply impeaching. The weight of his testimony, notwithstanding the alleged impeachment, was for the jury. State v. Carpenter, 124 Iowa 5, 11.”

Here, also, the plaintiff’s witness attempted to explain the alleged contradictions, and the trial jury evidently accepted it as sufficient. The defendant presents this matter as if these contradictions, if such they were, were substantive proof of the facts in the case. Manifestly this is not true, as they were admitted solely for impeaching purposes, and it was for the jury to say.what weight should be given them. It did so. The credibility of the witness Preuss was for the jury to determine, and we note there was no complaint by defendant as to the instructions of the court, and none was offered by him. We assume, then, they were clear and correct, and the jury fairly considered all of this evidence. State v. Banks, 227 Iowa 1208, 290 N.W. 534. In the case of Hartman v. Red Ball Transportation Co., 211 Iowa 64, 69, 233 N.W. 23, 25, we said:

“Some of the witnesses on both sides modified and materially changed the testimony given upon the trial below from that given before the coroner’s inquest. This regrettable fact does not pre[299]*299sent a question of law for the court, but a question of fact for the jury, which must determine the credibility of the witnesses.”

It is true, however, that the court may in its discretion allow a new trial where the prevailing party perjured himself or knowingly used perjured testimony, but this case does not come within that rule. Weinhart v. Smith, 211 Iowa 242, 233 N.W. 26.

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60 N.W.2d 541, 245 Iowa 294, 1953 Iowa Sup. LEXIS 450, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jettre-v-healy-iowa-1953.