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Meyer v. City of Des Moines9/18/1991
Considered en banc.
The defendants appeal from jury verdicts in a bifurcated trial arising out of a personal injury action. The defendants raise issues concerning jury instructions, sufficiency of the evidence, and taxation of costs. We reverse and remand for new trial on liability only because of errors in several instructions.
I. Background Facts and Proceedings
On March 23, 1987, fifteen-year-old David Lee Meyer was returning home from a friend's house on a moped. His moped collided with a garbage truck owned by the city of Des Moines. Don Willis Prugh was driving the truck.
Just before the collision, David was traveling southbound on a residential street in Des Moines. The truck was going north. Before impact, the truck passed a parked car in the northbound lane and moved into the southbound lane. The point of impact was in the southbound lane--David's lane.
Prugh saw David a distance away before the collision. David was looking down instead of ahead. The moped was going about twenty-five miles per hour, and the truck was moving slowly and braking.
David, who was not wearing a helmet, was knocked unconscious by the collision. He was admitted to a hospital in serious condition with multiple injuries including severe brain damage.
In January 1988 David's parents, on his behalf and individually, sued the city and Prugh. The Meyers alleged numerous specifications of negligence against the two defendants and sought damages from them because of the collision.
In their answer, the defendants asserted two affirmative defenses: David's negligence was the sole proximate cause of his injuries, and his damages should be reduced in proportion to his contributory fault. Later, the defendants were allowed to amend their answer to include the affirmative defense of failure to mitigate damages.
The district court, Judge George W. Bergeson, bifurcated the trial into two phases: liability and damage. This was done at the Meyers' request and over the defendants' resistance.
The liability phase of the trial was heard by a jury which found David to be fifty percent at fault and the defendants fifty percent at fault. Judge Theodore H. Miller, who presided at this phase of the trial, overruled the defendants' posttrial motions. In those motions the defendants claimed that the evidence was not sufficient to support the jury's apportionment of fault and that certain jury instructions were erroneous.
The defendants appealed. This court treated the appeal as interlocutory and dismissed it. See Iowa R.App.P. 2.
Judge Rodney Ryan presided at the damage phase of the trial, which was also heard by a jury. Pursuant to the jury's special verdict answers, Judge Ryan entered judgment for the Meyers and against the defendants in the amount of $136,500. Judge Ryan overruled the defendants' posttrial motions. The judge also overruled the defendants' application for retaxation of court costs.
The defendants appealed, raising numerous issues which we consider in the following order.
II. Jury Instructions
A. Iowa Code section 321.275(4): Full use of a lane.
During the liability phase, Judge Miller instructed the jury in Instruction No. 8 on the specifications of negligence alleged by the Meyers. Specification 3 stated: "In depriving the plaintiff David Lee Meyer of his full lane of travel."
In Instruction No. 17 the judge expanded on this specification: "A motorized vehicle shall not be operated in any manner so as to deprive a motorized bicycle (moped) operator of the full use of a lane."
These ins
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