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Derek K. Crow v. Edwin E. Simpson

March 13, 2013

DEREK K. CROW, PLAINTIFF-APPELLEE,
v.
EDWIN E. SIMPSON, INDIVIDUALLY AND D/B/A SIMPSON TRUCKING AND EXCAVATING, DEFENDANT-APPELLANT.



Appeal from the Iowa District Court for Monroe County, Daniel P. Wilson, Judge.

The opinion of the court was delivered by: Danilson, J.

Defendant, Edwin Simpson (individually and doing business as Simpson Trucking and Excavating), appeals from a district court order that granted a new trial to the plaintiff, Derek Crow. AFFIRMED.

Heard by Eisenhauer, C.J., and Danilson and Bower, JJ.

Defendant Edwin Simpson (individually and doing business as Simpson Trucking and Excavating), appeals from a district court order that granted a new trial to the plaintiff Derek Crow. Because it is clear that the end loader was parked in the traveled portion of the roadway, the jury could not have followed the jury instructions given, and the district court did not abuse its discretion in granting a new trial. We affirm.

I. Background Facts and Proceedings.

Sometime around 2:30 a.m. on Saturday August 30, 2008, eighteen-year-old Derek Crow met fourteen-year-old Brianna Baylor at the Albia, Iowa, soccer fields. Crow and Baylor had had their first date that Friday night, going first to a football game and then to a post-game gathering. Baylor arrived at the soccer fields on her moped with her friend Brooke Sinnott. Baylor gave Crow permission to take the moped for a short ride. Crow had a cast on his left hand and the controls for the moped's rear brakes were on the left handle. The headlights of the moped came on automatically.

Crow left the area of the soccer fields. At about 3:15 a.m., Crow called or sent Baylor a text saying something like, "I wrecked on a gravel road," there were some scratches on the moped, and that he wasn't hurt at all. He told her he didn't know where he was. Baylor and Sinnott began walking and came upon the moped five or six blocks away near an end loader on North Ninth Street. It was dark, but the girls could see the end loader from about a block away. Crow was not there. The moped "was on the kick stand." The moped engine would not turn over, but the headlights came on.

Crow appeared and walked the moped back to Baylor's house. Baylor and her friend walked on the opposite side of the street because Baylor was angry with Crow. Crow told Baylor "he hit the end loader and maybe the moped rolled under it." When Baylor got back to the house she saw that the front fender was broken off and one of the turning signals was "busted. Then I sat on it and the wheel was crook[ed]. And there was something in the wheel and it had come out about two inches. And I think there were a couple scrapes on it and there was also blood on it." They put the moped somewhere Baylor's mother would not see it right away and then the three young people walked back to Ninth Street where Crow's car was. Crow then gave the two girls a ride toward the house where Baylor had told her mother she was spending the night.

Crow's mother, Debra Crow, called him at 1:09 a.m. on August 30. He told her he was at a friend's house "hanging out in the garage" and would be home soon. This friend lived less than a quarter mile away on a gravel road. Crow did not return home until 3:25 a.m. He talked to his mother briefly then went upstairs. He came back downstairs twice: the first time was fifteen to twenty-five minutes later, at which point his mother did not notice anything in particular; he came down again about forty minutes later. Crow told his mother he had a headache. He lay down and threw his hand on the back of the sofa. His mother noticed band-aids "all up and down his arm and hand." She took the band-aids off and noticed his hand was "wide open." He told his mother he did not know what happened to his hand. He said he had fallen down the steps at the football game. He then grabbed his head and shortly thereafter began vomiting. He was taken to the hospital in Albia, where he was diagnosed with head trauma. He became non-responsive and was air-lifted to a Des Moines hospital where he underwent surgery. Crow later was flown to the hospital in Iowa City. He recovered consciousness on September 5.

Crow brought an action for personal injuries against the city of Albia, the local electric cooperative,*fn1 and Edwin Simpson claiming their acts of negligence were the cause of injuries he received while allegedly riding a moped and striking an end loader owned by Simpson.

Crow testified he had been riding motorized bikes since he was six or seven and that prior to August 30, 2008, he had ridden a moped several times. He stated he met Baylor and Sinnott at the parking lot between the pool and soccer fields and borrowed the moped to take a short ride. Crow testified he rode past the high school, turned on to D Avenue, then turned left on to Ninth Street. The moped head light was on and he saw "something big and yellow." He said he remembered grabbing for both brakes and the next thing he remembers is "kind of laying to the side." He texted Baylor while still lying down. He then got himself up and began walking back to meet with Baylor and Sinnott, but decided to call some friends to come pick him up and take him back to his car. It was after 2:30 a.m. His friends picked him up and took him back to his car. He then returned to Ninth Street where he found Baylor and Sinnott by the moped.

Following a six-day trial, the jury answered a question on the verdict form, finding Simpson was not at fault. In a motion for new trial, Crow argued that the finding was not supported by sufficient evidence, particularly in light of jury instructions that stated that violations of law constitute negligence. The court ruled that the jury's finding that Simpson was not at fault was "contrary to the uncontroverted evidence . . . in light of Instructions Nos. 21 and 17." It also concluded the jury's verdict did not effect substantial justice between the parties.

On appeal, Simpson contends (1) the district court erred in granting a new trial based on unasserted challenges to the jury instructions, and (2) the court abused its discretion in granting a new trial on grounds the verdict failed to affect substantial justice between the parties.

II. Analysis.

We begin with the observation that there were no objections to the jury instructions given. Thus, they provide the law of the case. See Iowa R. Civ. P. 1.924 (stating that objections to the jury instruction must be made and ruled on before arguments to the jury and that "[n]o other . . . objections shall be asserted thereafter, or considered on appeal"); see also Olson v. Sumpter, 728 N.W.2d 844, 850 (Iowa 2007) (finding the plaintiff was not entitled to a new trial for the reason articulated by the district court-failure to instruct the jury properly- where the plaintiff "failed in advance of closing arguments to object to jury Instruction 17, the jury verdict form, and the sufficiency of the evidence of her unreasonable failure to mitigate her damages").

Simpson argues Crow did not raise the issue that Simpson was negligent as a matter of law or move for a directed verdict on the issue of Simpson's negligence and therefore waived ay such claim. Crow responds that the issue is not whether he preserved a claim of error to the instructions given, but whether the jury followed those instructions. We agree. The district court's conclusion that the verdict was "contrary to the law as instructed" is, in ...


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