Staley v. Forrest

McClain, C. J. — The material allegation of negligence on the part of defendant which was submitted to the jury was that defendant operated his automobile at an unreasonable and dangerous rate of speed on a street of the city of Iowa Falls, approaching plaintiff who was driving a horse and buggy from the opposite direction on such street, causing the horse of the plaintiff to become- frightened, upsetting the buggy, and throwing the plaintiff out, with the result that her arm was broken. accident: negligent operation; liability. I. The contention that the verdict for the plaintiff is without support of any evidence in the record tending to show negligence of the defendant need not be considered at any great length. Although the plaintiff’s own testimony as to what she observed . . ' m the ' excitement of the moment as she , • came around a curve onto the street and was met by the defendant in his automobile does not tend very [190] strongly to establish negligent conduct on the part of the defendant, nevertheless, there was testimony of a witness who was in a position to observe the circumstances, from which the jury might well have believed that at a rate of speed which was dangerous and negligent, in view of the curve in the street at the approach of a bridge, defendant ran his machine directly toward the plaintiff in a manner calculated to frighten even a reasonably safe and well-trained horse, and that as a result of this conduct of defendant, which might well have been anticipated, plaintiff’s horse was frightened, and jumped aside to avoid an imminent collision, upsetting plaintiff’s buggy, and causing the injury complained of. In this connection we may notice an assignment of error relating to the admission of the evidence of a witness who was allowed to testify as to the speed at which the defendant’s automobile was being operated at the time of the accident; the claim made being that the witness did not show himself competent to give an opinion as to the rate of speed. The point is not pressed in argument, and an examination of the testimony of the witness shows that it is not well taken. The witness clearly showed such competency as to justify the court in receiving the evidence. _ s. Damages: per-judgments-ry: allowance of interest. II. As to the amount of damages which might be allowed, the jury was instructed to take into account pain and suffering already endured by the plaintiff, if any, and such pain and suffering as it was reasonably . ° d certain from the evidence would be endured hj her i» the future, if any. And the jury -was then directed that on determining the amount allowed as damages interest should be computed pn that amount from the time of the injury and be added to the amount of the damages, and that the sum thus ascertained would be the amount of the verdict. It is conceded that this instruction was erroneous, for the reason that it directed interest to be computed from the [191] time of the injury on the amount allowed for future pain and suffering. Jacobson v. United States Gypsum Co., 150 Iowa, 330. The jury, in fact, returned a verdict for $1,236.60, and judgment was immediately entered for the plaintiff in that sum. On a 'motion for a new trial, this error was called to the attention of the court; and the judge, in ruling upon such motion which covered also other grounds for new trial, filed a finding in which the error of the instructions as to the allowance of interest was attempted to be corrected by the reduction of the verdict so as to eliminate the item of interest which it was presumed the jury had included in its verdict covering the period from the date of the injury to the date on which the verdict was rendered. It is proper to say in explanation of the action of the judge that the decision of this court in the case above cited was announced between the time of the giving of the instruction and the time of ruling on the motion. In connection with the filing of this written finding by the judge ruling on the motion for a new trial, a judgment entry was made reciting that: By agreement of parties entered of record in term time, the motion for new trial in this cause was to be submitted in vacation and ruling and entry made as of the date of said agreement. The motion for new trial having been submitted, and the court having considered the same and having filed its finding, it is now ordered that the said motion be overruled and that the plaintiff have and recover judgment for the sum of $1,200 with interest at the rate of six percent from the date the verdict was returned into court, viz., the 26th day of January, 1911. To the overruling of defendant’s motion and to all entries herein the defendant excepts. The contention for appellant is that the judgment for $1,236.60 entered on the verdict at the time it was returned was erroneous on account of the error in the instruction relating to interest, and that the court had no authority [192] to subsequently enter a corrected judgment, and that, as the first judgment was not set aside, a second judgment on the same verdict is necessarily erroneous. It is not contended, however, that the second judgment, if properly entered, does not eliminate the prejudicial error in regard to the allowance of interest. The sole question presented in this respect is as to whether the second judgment is valid; for, of course, it is of no validity if there remains on the record a prior judgment entered on the same verdict. It is clear that the court had the authority in ruling on the motion for new trial to determine that the verdict included an item of damage for which allowance should not have been made, and, as the court had directed the jury to include interest which should not have been included, the court might properly enter judgment for the amount'of damages found by the jury, excluding the amount which it must be presumed the jury had included on account of the erroneous instruction as to interest. By agreement of the parties, the judge had authority in vacation to make such entry as the court might have made at the term, and that authority included the entry of judgment on the verdict for the proper amount. There was no occasion, therefore, to award a new trial on condition that plaintiff ■should not accept a judgment for a reduced amount. The erroneous allowance on account of interest was ascertainable, and the court might eliminate the amount of such erroneous allowance and render final judgment for the balance. Thus it appears that the only grievance of the appellant is in this respect that a judgment had already been entered on the verdict which remained a valid and binding adjudication notwithstanding the attempt to enter a subsequent correct judgment. Construing together the original judgment, the written finding ‘ of the judge in ruling ‘ on the motion for a new trial, and the final judgment entry, it is plain that the effect of the action of' the court was to [193] set aside the first judgment, and to enter a new and correct judgment in its place as of the same date. It could hardly be contended that, if the ruling on the motion for a new trial had expressly recited the setting aside and vacation of the first judgment, the second and correct judgment would not have been effectual. The intention of the trial judge in his ruling to set aside and’ cancel the judgment already entered is perfectly clear; and it is perfectly clear that the second and correct judgment is a substitute for the judgment first entered. We reach the conclusion that the final'judgment is for a correct amount, and such judgment is therefore,— Affirmed.