282 N.W. 534 | Neb. | 1938
This action was brought in the district court for Douglas county to recover damages for the death of plaintiff’s intestate, alleged to have been caused by the reckless operation of the automobile of defendant in which plaintiff’s intestate, her husband, was riding. The jury returned a verdict for the plaintiff in the sum of $3,250. Defendant appeals.
The pleadings admit the appointment of the plaintiff as the administratrix of her husband’s estate, the accident, and the place at which it occurred. The pertinent allegations of plaintiff’s amended petition relating to the cause of action may be summarized as follows: That the accident was due to gross negligence and reckless driving of the aur tomobile by the defendant, in the matter of speed, management and control of his automobile, in attempting to pass
The second amended answer of the defendant cites the guest statute (Iowa Code 1935, sec. 5026-bl), and alleges that the plaintiff’s intestate was riding in defendant’s automobile as a guest, by invitation and not for hire, as such statute has been construed by the supreme court of Iowa. The answer further denies that the accident was caused by any reckless operation of the automobile, as has been defined by the law of Iowa, or by any violation of the Iowa statute. The reply is a general denial.
On September 11, 1936, the defendant, Oscar G. Heather, the plaintiff’s intestate, Ray O. Barnard, and one Hans J. Hansen left their homes in Omaha at 3:15 a. m. to go to Alexandria, Minnesota, on a fishing trip. The defendant was driving his 1934 Studebaker sedan. Seated at his right was the plaintiff’s intestate, and Mr. Hansen was in the rear seat. The accident occurred about 7:45 in the morning on highway No. 75, a paved highway 18 feet wide, with seven-foot dirt shoulders, being the main highway from Sioux City, Iowa, to Minnesota, running directly north. The country is rolling, but the hills are not steep. The weather was clear and dry and the visibility good.
The most competent evidence relating to the accident is the testimony of John Beernink, a farmer, who was an eyewitness of the accident. Mr. Beernink lived about four miles southwest of Sioux Center, Iowa. On the morning of
The testimony of the sheriff, who arrived at the scene of the accident about 8:30 a. m., showing the course traveled by the defendant’s car and its position on the road, would add nothing of particular advantage to the evidence, as no definite measurements were taken. The testimony of defendant discloses that he could see a mile and a half ahead, and certain portions of his testimony are set out by plaintiff, to the effect that the defendant did not pass any cars that hé knew of; he did not see any car that he knew of before the accident happened or at the timé of the accident; did not see or meet any cars; that he could not recall how he happened to go off the left-hand side of the road, and before the crash did not see anybody coming towards him; did not see a car between himself and the end of the mile and a half distance; that the view was clear; he did not know what occurred; did not recall seeing the Ford car ahead of him or any car from the north, and did not know how the accident happened. Defendant also testified, in substance, that he was not able to reconstruct in his mind all that happened; that he had tried to 'do so, and that he could not bring the happening of the accident or any of the events occurring at the time back to his mind; that he did not recollect seeing the car approaching him. There is also in the record evidence that defendant had no recollection of the accident. He was injured; the accident occurred in less than a second’s time, and there is nothing unusual in defendant’s testimony that he could not recall just what happfened, when he was stunned a few moments after' the accident. He had-driven an automobile for. 17 years. •:
The town marshal of Sioux Center testified that he talked to the defendant; that defendant stated he was going at a rate of speed of 28 miles an hour. The witness testified: “Q. What else did he say? A. Then he said he passed a car that was ahead of him and turned in to the right to avoid a car coming from the north.” On cross-examination the witness testified: “Q. He told you everything he remembered about the accident? Did he say anything about his car being sideswiped? A. He mentioned to me it looked like the car coming from the north sideswiped him. Either the northbound car or southbound car sideswiped him, was his idea.” The foregoing facts, as disclosed by the record, are sufficient for an analysis of the instant case.
The appellant contends that the trial court erred in overruling defendant’s motion for a directed verdict at the close of all the evidence.
Section 5026-b1, Iowa Code 1935, reads: “The owner or operator of a motor vehicle shall not be liable for any damages to any passenger or person riding in said motor vehicle as a guest or by invitation and not for hire, unless damage is caused as a result of the driver of said motor vehicle being under the influence of intoxicating liquor or because of the reckless operation by him of such motor vehicle.” That part of this statutory provision relating to intoxicating liquor is not involved in this case.
In Siesseger v. Puth, 213 Ia. 164, 182, 239 N. W. 46, 54, “Recklessness” under the guest statute is defined as “ ‘proceeding without heed of or concern for consequences.’ To be ‘reckless,’ one must be more than ‘negligent.’ Recklessness may include ‘wilfulness’ or-‘wantonness,’ but if the conduct is more than negligent, it may be ‘reckless’ with
In Mescher v. Brogan, 272 N. W. (Ia.) 645, it was held: “ ‘Recklessness’ is conduct amounting to more than negligence and surrounding circumstances in each particular case must be considered in determining the question;” that, “In Iowa, there are no degrees of negligence;” and that the “Rule that ‘recklessness,’ within automobile guest statute, is more than negligence, means that recklessness is more than want of ordinary care, and does not necessarily mean that recklessness is conduct which transcends or goes beyond what is considered gross negligence in states recognizing degrees of negligence.”
In the instant case there is no evidence of excessive speed on the part of defendant in driving his Studebaker sedan. The car coming from the north, 75 to 100 feet in front of the Ford car, or approximately the same distance in front of the Studebaker car, required the driver of the Studebaker to use that degree of care in an emergency as would be required of an ordinarily prudent man, under the circumstances, to avoid the accident. This the evidence discloses defendant sought to do, and elected to turn his car to the right in front of the Ford car. As a consequence, the car coming from the north went on, apparently untouched. The Ford car was jarred slightly. The defendant was probably guilty of negligence. At most, he might have been guilty of exercising poor judgment under the circumstances.
In the case of McQuillen v. Meyers, supra, it was said (p. 1368) : “The court defined negligence, but charged that
“The evidence must disclose something from which recklessness could be legitimately inferred, and as the trial court said in his finding:
“ ‘If the only thing you can infer from the evidence is negligence, then the court should not submit the question to the jury. * * * It seems to me as if this statute, if it means what it says, means that the plaintiff must show some act as would be pronounced by every person as an utter indifference to the safety of the guest in his car.’ ”
Defendant cites the case of Brown v. Martin, 216 Ia. 1272, 248 N. W. 368. In that case three railroad men were on a hunting trip, riding in a Studebaker sedan. The plaintiff was in the seat next to the driver, and one man was in the rear seat. They left the paved highway, went onto a graveled road; the car immediately began to swerve, finally landing in a ditch. In the opinion the case of Siesseger v. Puth, supra, was quoted with approval, the court adding (p. 1276) : “In this opinion it was also held that recklessness, within the meaning of the statute, was not a degree of negligence, but was something entirely beyond and distinct from negligence.” And at page 1286 it was said: “Even if it may be said that the defendant should have reduced the speed of his car more than he did before going upon the graveled highway, there is nothing to show his failure to do so amounted to anything more than an error in judgment, and, regardless of the consequences, a mere error in judgment amounts to no more than negligence and is not recklessness.”
We believe that the facts and circumstances in the case
Plaintiff cites the case of White v. Center, 218 Ia. 1027, 254 N. W. 90, on the proposition: “Where a motorist collides on a paved highway with a wagon moving in the same direction in which he is going and which was plainly visible for a quarter of a mile, he may be held liable for reckless operation for injuries sustained by one riding with him as a guestand on the further proposition: “Where a motorist drives his automobile into an object upon the highway, which is visible for at least a quarter of a mile, he is guilty of reckless operation” of his automobile.
In the above-cited case the driver was on a straight, level stretch of a paved road on the right-hand side thereof, and could see in the road ahead of him, for at least a quarter of a mile, a team and wagon with a load of corn. He operated his car at a speed of 70 miles an hour and crashed into the rear of the wagon. The circumstances of this case presented a question for the jury of reckless driving and show a different situation than exists in the case at bar. .There was no emergency in the White case as was presented in the instant case.
The case of Bowermaster v. Universal Producing Co., 221 Ia. 831, 266 N. W. 503, wherein a judgment was reversed and the reason for reversal was testimony tending .to establish recklessness, when tested in the light of the admitted physical facts and verities revealed in the record as not being true, conceding the plaintiff’s right to the benefit of the most favorable view of the evidence rule, is of no assistance to the plaintiff in this case. The facts in the case of Hart v. Hinkley, 215 Ia. 915, 247 N. W. 258, are not analogous to the facts in the instant case; nor was the situation in any degree the same, which is also true of Szetela v. Abramowicz, 118 Conn. 697, 172 Atl. 852.
Plaintiff cites Sanford v. Grady, 1 Cal. App. (2d) 365, 36 Pac. (2d) 652, and Goss v. Overton, 266 Mich. 62, 253
In Sanford v. Grady, supra, the facts and circumstances disclose a determined effort on the part of the driver, who was passing a truck, traveling at the rate of 45 miles an hour, sounding his horn, and increasing his speed, to cut in quickly and run parallel with the truck, knowing that there would be an accident, and stating that it would be easier for the other car to pull out on the dirt than it would be for him to go around the rear of the truck, and not giving ground, and knowing that another car might possibly be coming up the hill, and plunging directly into the approaching car. This case presents a distinctly different state of facts than those in the case at bar.
In Goss v. Overton, supra, it was held: “Motorist is guilty of wilful and wanton misconduct where he drove car at speed of approximately 60 miles per hour over road with which he was very familiar and knew had been recently covered with loose gravel and struck telephone pole at curve he was unable to negotiate in his effort to avoid road scraper raising dense cloud of dust beyond which he could not see, and therefore trial court did not err in denying motion for judgment non obstante veredicto for guest passenger.” We believe that a further statement of the case is unnecessary, in view of the circumstances presented in the case at bar.
The trial court was right in not submitting the proposition of a joint enterprise to the jury. There is some evidence that the deceased purchased seven gallons of gasoline at LeMars, and some evidence that the three men were to pay their equal shares of the expenses on the fishing trip. There is no further evidence as to a joint enterprise. The deceased was a guest of the defendant at the time of the accident, within the meaning and contemplation of the guest law of the state of Iowa. See Clendenning v. Simerman, 220 Ia. 739, 263 N. W. 248; Park v. National Casualty
In the case of Wion v. Hayes, 220 Ia. 156, 261 N. W. 531, the court said (p. 161) : “At the same time it was the duty of the district court to apply the doctrine adopted by this court, that a scintilla of evidence is insufficient to call for the submission of a case to the jury. In re Estate of Work, 212 Ia. 31, 233 N. W. 28. In Schmidt v. Hayden, 205 Ia. 1369, 219 N. W. 399, this court said: ‘The direction of a verdict, in its last analysis, is always a question of the sufficiency of the evidence.’ ”
The trial court should have directed a verdict in favor of the defendant at the conclusion of all the evidence. The judgment is therefore reversed, and the cause dismissed.
Reversed and dismissed.