Home/Supreme Court of Iowa/Russell v. Leschensky

Russell v. Leschensky

276 N.W. 603, 224 Iowa 334
CourtSupreme Court of Iowa
DecidedDecember 14, 1937
DocketNo. 43950.
StatusPublished
Cited by4 cases

This text of 276 N.W. 603 (Russell v. Leschensky) 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
Russell v. Leschensky, 276 N.W. 603, 224 Iowa 334 (iowa 1937).

Opinion

Donegan, J.

Paved Highway No. 18 runs in a northeasterly and southwesterly direction through the town of Clermont in Fayette county, and is also known as Mill street in said town. Near the north edge of the town said highway is intersected at right angles by a road or street known as Iowa street. About five o’clock on the afternoon of September 1, 1934, the plaintiff, Joe Russell, accompanied by Arnold Larson, was driving a Model A Ford sedan in a northwesterly direction on said Iowa street toward its intersection with the paved highway and had reached a point on the pavement and the Ford sedan was struck by a Chevrolet truck owned by the defendant, W. A. Leschen-sky, doing business as Waukon Bottling Works. As a result of this collision Russell was thrown from the automobile onto the pavement and received injuries for which he asks damages in this action.

The petition filed by the plaintiff alleged several grounds of negligence, but only two of these grounds were submitted to the jury by the trial court. The answer filed by the defendants consisted of a general denial. The case was’ tried to a jury, which returned a verdict in favor of the plaintiff for $5,230. In due time the defendants filed exceptions to instructions and motion for new trial. On hearing, the court ordered that the *336 verdict should be “reduced to $3,800 and costs, and that, unless plaintiff consented to such reduction, a new trial would be granted. Plaintiff filed a remittitur consenting to reduction as ordered by court, and judgment was entered in favor of the plaintiff and against the defendants for $3,800 with interest and costs. Prom this judgment and verdict, and from all adverse orders and rulings of the trial court, the defendants appealed. The appellants allege error on the part of the trial court on three separate grounds. We shall consider these allegéd errors in the order in which they have been alleged and argued.

I. The first ground of error relied on for reversal is:

“The Court erred in overruling Ground 1 of defendant’s Motion for Directed Verdict, which was as follows:

“1. The plaintiff has failed to establish the allegations of his Petition or any of them and has failed to sustain the burden of showing negligence alleged as against defendants, and his own freedom from contributory negligence and if, upon the whole record, the jury should return a verdict for the plaintiff, it Avould be the duty of the Court to set it aside for lack of sufficient evidence to support it.”

It will be noted that in this ground of the motion for a directed verdict the defendants allege that a verdict should be directed in their favor because the plaintiff failed to sustain the burden of showing: (1) negligence alleged as against the defendants ; and, (2) his own freedom from contributory negligence. It becomes necessary, therefore, to consider the condition of the evidence and the reasons alleged by defendants in support of their contention.

One of the grounds of negligence submitted to the jury was: “That the defendants’ truck was then being driven on the westerly side of said primary highway, that is, on the left-hand side of the highway when going in a northerly direction.” The ground of negligence thus submitted was substantially as alleged in plaintiff’s petition. It is, of course, elementary that, in considering a motion to direct a verdict, the evidence and all reasonable inferences to be drawn therefrom must be considered in the light most favorable to the party against whom the court is asked to direct the verdict. The only witness who testified for the plaintiff in regard to the facts and circumstances surrounding the accident was one Larson, the person who was riding with the plaintiff in his Pord automobile. The evidence shows that a *337 main line track and a switch track of the Chicago, Rock Island and Pacific Railway Company cross the paved highway a short distance southwest of the point where the accident occurred; that the most northerly of these tracks, and, therefore, the one nearest to the point of the accident, is 230 feet from the intersection of the paved highway with Iowa street; and that the southerly track is 276 feet distant from this intersection.

From the testimony of Larson the jury could have found that, as the Ford sedan came up on the pavement it was in low gear, and that the truck was then beyond or southwesterly from the railroad tracks, had not yet crossed either of the tracks, and that the Ford had plenty of time to get across the paved highway; that the Ford had reached the westerly or northwesterly side of the pavement, was turning in a southerly direction with its right front wheel a foot or so over on the gravel on the west shoulder and its back wheels about a foot or so across or west of the center line of the paving when its engine stalled; that when *338 the Ford ear reached this position Russell was rolling the starter trying to get it started; that at that time the truck was between the two railroad tracks; that from the time he saw the track between the railroad tracks until it struck the Ford he would judge to be seven or eight seconds; that the truck struck the left rear wheel of the Ford; that just prior to the time the beer truck struck the Ford it was going up the middle of the street all the way up until it struck the Ford; that it appeared to be about half way on his side of the street, and Russell was rolling the starter right up to the time of the collision.

*337

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Cite This Page — Counsel Stack

Bluebook (online)
276 N.W. 603, 224 Iowa 334, Counsel Stack Legal Research, https://law.counselstack.com/opinion/russell-v-leschensky-iowa-1937.