208 N.W. 330 | Iowa | 1926
The plaintiff and appellee sued to recover damages caused by personal injuries received while riding in an automobile owned and driven by the defendant. Upon a trial to a jury, there was a verdict for the defendant. The court sustained a motion by the plaintiff for a new trial, and set the verdict aside. The defendant appeals from this ruling.
The motion for a new trial was based upon alleged error of the trial court in giving three designated instructions, and on the ground that the verdict was contrary to law. The motion was sustained generally.
I. It is undisputed that appellee's injuries were caused when the car in which she was riding as a guest, and upon the invitation of appellant, went into a ditch on the left-hand side of the road. The court instructed that the acts 1. NEGLIGENCE: of negligence relied upon by the appellee were: actions: (1) That, prior to the moment of the accident, instruc- the defendant was driving said car at an tions: excessive rate of speed. (2) That, requiring notwithstanding the warning given by the excessive passengers in the automobile, defendant drove proof. said car at a high and excessive rate of speed. (3) That the defendant drove said car at said high and dangerous rate of speed upon loose gravel; that the car skidded, and defendant lost control *802 thereof. This appears to be accepted by both parties as an accurate statement of the negligence charged in the petition.
In the next instruction, the court charged that, to entitle plaintiff to recover, she must establish by a preponderance of the evidence that the defendant was negligent "in the respects charged in the petition."
The objection to this instruction is not, as we understand it, so much to the reference to the petition to ascertain the negligence charged, as that it required a finding of negligence in all the respects mentioned in the preceding instruction, to warrant a recovery, instead of in but one or more of them. Appellant seeks to sustain the instruction by the argument that there was but one act of negligence charged, and that was excessive speed. This is true; and, had the instruction merely required the plaintiff to establish that the car was being driven at an excessive rate of speed, and a causal connection between such excessive speed and the injury, it would not have been open to the objection made. But the petition alleged, as stated in the preceding instruction, excessive speed under different circumstances, — that is, just prior to the accident, in disregard of warnings of the other persons in the car, and upon loose gravel; and the instruction required that plaintiff, to be entitled to recover, must establish, not merely excessive speed, but excessive speed under all of these circumstances. The plaintiff was under no such burden.
It is clear that, if the car was being driven at an excessive speed just before it went into the ditch, and a causal connection between the rate of speed and the ultimate ditching of the car and injury to appellee appeared, actionable negligence would be shown although the speed had been reduced at the instant the car left the road, and although there was no loose gravel and no warnings from the passengers. So, too, if the car was driven at excessive speed upon loose gravel and thereby was caused to leave the road, with the result that appellee was injured, this would constitute negligence, without regard to the speed an instant before, or without regard to previous warnings. The instruction was erroneous, and prejudicial to plaintiff.
II. The court instructed that, if it was found that the defendant was driving at a rate of speed in excess of 30 miles *803
2. MOTOR per hour, the presumption would be that he was VEHICLES: negligent in so doing. The statute in force at operation: the time, Section 27 of Chapter 275, Acts of the unlawful Thirty-eighth General Assembly (Section 5029, speed: neg- Code of 1924), provided that no person should in ligence per any event drive a motor vehicle equipped with se. such tires and carrying such load as appellant's car, at a greater rate of speed than 30 miles per hour. This was a positive statutory prohibition of a speed greater than 30 miles per hour, and a violation was made a misdemeanor. Section 29, Chapter 275, supra (Section 5089, Code of 1924). A speed in excess of the rate permitted by statute was negligence per se.,
not merely prima-facie negligence. Ives v. Welden,
The recognized distinction between those violations of a statute that are negligence per se and those that are merely prima-facie negligence was pointed out in the Carlson case, supra. A violation of a statute prohibiting "in any event" a speed in excess of a certain rate comes clearly within the former. The distinction is in this case emphasized by the fact that the former statute made a speed in excess of that then fixed in the statute merely presumptive evidence of negligence. Fisherv. Ellston,
III. The third instruction assailed by the motion for a new trial related to the subject of contributory negligence. The court instructed, in substance, that the plaintiff was required to exercise the same care as an ordinarily 3. NEGLIGENCE: rudent person would exercise under like instruc- circumstances; and that, although she had a tions: in- right, within reasonable limits, to rely upon vading pro- the skill and judgment of the driver, she had no vince of right to rely implicitly upon his care and jury. prudence, and, if he was driving at a high and dangerous rate of speed and she knew and realized it, or as a reasonably prudent and careful person should have so known and realized, *804 it was her duty to attempt to have him check the speed to a safe rate; and that, if it was found by a preponderance of the evidence that the car was being driven at a high and dangerous rate of speed, "and the plaintiff, knowing and appreciating that fact, or as a reasonably prudent and careful person should have known it, made no effort to have said speed diminished," and such failure contributed directly to the accident and her injury, she could not recover.
There was testimony that the other occupants of the car had, before the accident, read the speedometer aloud and commented on the speed, and that plaintiff had complained about the speed. The defendant testified that he heard neither comments nor complaint. In view of this testimony, the instruction was misleading, even though a correct statement of the law. Under the rule given in the instruction, that it was the duty of the plaintiff, under the circumstances stated therein, to have protested, it was clearly a question for the jury whether she did so, and whether what she did, if anything, was sufficient to relieve her of contributory negligence.
But it is urged that the instruction is erroneous in that it invaded the province of the jury, in saying that, if the plaintiff knew and appreciated that the car was being driven at a high and dangerous rate of speed, or in the exercise of ordinary care ought to have so known, it was her duty to have attempted to have the driver check the speed, and that, if she made no effort to have the speed reduced, she was guilty of contributory negligence. The precise point is that, it is said, the court could properly instruct that she was, in such circumstances, bound to exercise ordinary care, but not that she was bound to do a certain thing or take a particular precaution.
While all authorities agree that a guest riding in an automobile is bound to exercise ordinary care for his own safety, there is a marked lack of agreement as to what the exercise of ordinary care requires of him with respect to his duty when he knows, or in the exercise of due care ought to know, that the driver is proceeding negligently, either in the matter of speed or in the face of a danger arising from some other cause. Some courts hold that, if the guest knows, or in the exercise of due care ought to know, of the excessive speed or other negligence *805
of the driver, it is his duty to protest to or warn the driver, and that, if he fails to do so, he acquiesces in the negligent act, and, as a matter of law, is guilty of contributory negligence. Among the cases so holding are the following: Sharpv. Sproat, 111 Kan. 735 (208 P. 613); Grifenhan v. Chicago R.Co.,
In other cases, the duty of the guest in this respect is held not to be an absolute one, but to be limited by the obligation to exercise reasonable care for his own safety; and that a failure to give warning or make protest to the driver will amount to contributory negligence when, and only when, a person of ordinary prudence would, under like circumstances, have uttered such warning or protest; and that this question is for the jury.
In Hermann v. Rhode Island Co.,
"It cannot be said, as a matter of law, that such guest or passenger is guilty of negligence because he does nothing. In many such cases the highest degree of care may consist of inaction."
The doctrine so expressed has been recognized in other cases of sudden danger where an emergency arose. Slee v. Neller,
Its application has been expressly or in effect denied in cases where there was "adequate and proper" opportunity for warning or protest. Ferrell v. Solski, 278 Pa. St. 565 (123 A. 493);Nelson v. Johnstown Traction Co., supra; Sharp v. Sproat, supra.
The Supreme Court of Washington, in Bauer v. Tougaw,
"If the driver's negligence was such that the passenger should actually have noticed it, or, in the exercise of reasonable care, is charged with notice of it, it was not the imperative duty of the passenger to warn or caution or attempt to persuade the driver to desist. His duty was, as we have said, merely to act as a reasonably prudent and cautious man would have done under the same circumstances * * *."
In Weidlich v. New York, N.H. H.R. Co.,
"The guest on the rear seat of an automobile owes a very limited degree of care. He is not expected to direct the driver, nor to keep a lookout. Dangers or threatened dangers known to him, he must warn the driver of, and for his failure to do so, be chargeable with having proximately contributed to the accident, unless a reasonable person, under all the circumstances, would not have given the warning."
It was held, in City of Gary v. Geisel, supra, that a guest who rode with another at an unlawful speed for 1,200 feet without protest before striking a pile of brick in the street was not, as a matter of law, guilty of contributory negligence.
In Lambert v. Eastern Mass. St. R. Co.,
"If the jury found that, in the exercise of common prudence, she ought to have given warning to her husband of carelessness on his part which she observed, or ought to have observed, in the exercise of due care for her own safety, and that she ought to have warned him that he was driving at too great a rate of speed, in view of the condition of the surface of the street, or that, in the exercise of reasonable care, she should have seen the approaching car and directed his attention to it, and that she failed to do so, she would not be entitled to recover."
In Irwin v. McDougal (Mo. App.), 274 S.W. 923, the court said:
"It is impossible for courts to lay down fixed rules by which to determine just when and under what circumstances an automobile should be driven from the rear seat. Each case must *807 rest upon its own facts. The courts all agree, however, that a passenger or guest in an automobile must use ordinary care for his own safety, and when the exercise of such care requires that he call the attention of the driver to approaching danger, he must do it, or be open to the charge of contributory negligence."
It is said in Babbitt's Law Applied to Motor Vehicles, 1010, that cases holding that a mere guest has no such control over the driver as to charge him with negligence for a failure to protest at the driver's act more nearly represent the real position of the guest than those holding him to a stricter obligation.
We now turn to our own cases. In Hubbard v. Bartholomew,
In Herdman v. Zwart,
We held in Stoker v. Tri-City R. Co.,
In Cram v. City of Des Moines, supra, we refused to subscribe to the doctrine that:
"One who, while riding with another who is negligent in such driving, fails to require the driver to exercise proper care and prudence, or take other steps for his own protection, is guilty of negligence."
Wagner v. Kloster,
"Whether the exercise of ordinary care exacted that plaintiff should have done more than he did, was for the jury to determine."
In Bradley v. Interurban R. Co.,
"With the first proposition, that the invited guest or passenger is not absolved from his obligation to use reasonable care for his own safety, there is no room for dispute; but this is as far as the court can keep step with counsel. The leap from the statement of duty of reasonable care for one's own safety to *809 the conclusion, as a matter of law, that the invited guest is negligent if he fails to see an impending danger in time to interfere and prevent it, is entirely too far. The question as to what is reasonable care in such an emergency is peculiarly a question for the jury. Within reasonable limits, the invited passenger in an automobile may reasonably and lawfully rely on the skill and judgment of the driver. He cannot physically interfere with the driver's control of the car, without peril of disaster. He may, under proper circumstances, sound an alarm, if he sees danger ahead of which the driver seems oblivious; but even then he must still, to some extent, place his reliance upon the driver to avoid it."
Waring v. Dubuque Elec. Co.,
In McDermott v. Johnson,
Glanville v. Chicago, R.I. P.R. Co.,
We have said, with respect to one about to cross a railway track, that it is not the province of the court to say, as a matter of law, that it is his duty to take a particular precaution, "but rather that he shall observe all the cautions required by reasonable and ordinary regard for his own safety * * *." Gray v. Chicago, R.I. P.R. Co.,
In view of this divergence in the opinions of eminent courts, *810 our own prior expressions on the subject, and the general rules long established in this state, we are of the opinion that the doctrine announced in the instruction ought not to be approved; but that it should have been left to the jury to determine, under proper instructions, whether the exercise of due care for her own safety required that the plaintiff, under the circumstances, should have protested to the driver, or attempted to have him reduce the speed of the car, and, if so, whether what she did, if anything, amounted to the exercise of due care on her part.
The lower court properly granted a new trial, and the order appealed from is — Affirmed.
De GRAFF, C.J., and STEVENS and FAVILLE, JJ., concur.