Wright v. What Cheer Clay Products Co.
| Decision Date | 12 May 1936 |
| Docket Number | 43350. |
| Citation | 267 N.W. 92,221 Iowa 1292 |
| Parties | WRIGHT v. WHAT CHEER CLAY PRODUCTS CO. et al. |
| Court | Iowa Supreme Court |
Appeal from District Court, Keokuk County; J. G. Patterson, Judge.
An action for damages resulting from personal injuries by reason of an automobile accident and based upon the theory of recklessness. There was a verdict in the trial court for the plaintiff. Facts reviewed and held not to constitute recklessness within the meaning of the statute.
Reversed.
Carl G. Draegert, of What Cheer, and F. M. Beatty, of Sigourney for plaintiff-appellee.
McNett, Kuhns & Brown, of Ottumwa, and Heninger & Heninger of Sigourney, for defendants-appellants.
This action involves a claim for damages for personal injuries resulting from an automobile accident and is based upon what is commonly known as the guest statute, section 5026-b1 of the Code. The statute in question was enacted by the Forty-Second General Assembly and is in the following language: " 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." Prior to the enactment of this statute, the operator of an automobile was liable to a guest due to the operator's negligence. The quoted section was passed by the Legislature for the evident and apparent purpose of relieving the operator of a motorcar from liability for negligence resulting in injury or damages to a guest, and in thus relieving the operator from liability they included in the enactment two exceptions, one taking from the operator the protection of the statute when he is under the influence of intoxicating liquor, and the other when he is guilty of reckless operation. In other words, the operator of a motor vehicle is by the statute relieved from liability to a guest entirely, unless such operator is under the influence of liquor or is operating the vehicle in a reckless manner.
The plaintiff in the instant case claims under the second or last exception to the general rule; that is, her claim is that by reason of the reckless operation of the car in which she was riding as a guest an accident occurred and she suffered injury and damages.
The case was tried to a jury, and after motions for a directed verdict and to strike and withdraw from the jury the allegations of recklessness, as contained in plaintiff's petition, the case was submitted to the jury, which returned a verdict for the plaintiff in the sum of $4,875. Motions to set aside the verdict, for a new trial, and exceptions to instructions were later overruled by the court. The defendants appeal.
Appellants assign many errors, including errors of the court in the admission and exclusion of evidence, in its instructions to the jury, in its refusal to give requested instructions, in its refusal to withdraw allegations of recklessness, in its refusal to direct a verdict for the defendants, and in its refusal to set aside the verdict and grant a new trial; but in the last analysis all questions presented resolve themselves into one, and that is: Was there sufficient evidence to warrant the submission to the jury of the question whether the car was being recklessly operated at the time of the accident? And if this question is answered in the negative it will not be necessary to notice errors assigned other than those pertinent to the main and vital question as above stated. We might say in passing, however, that the rulings of the court in the exclusion of certain testimony and in the undue restriction of cross-examination cannot be approved, and the same is true as to the instructions of the court; but as a reversal must result from our answer to the main question, a discussion of other alleged errors will be omitted.
The question as to whether or not a case of " recklessness" is made in the record necessarily rests in great part upon the facts as disclosed by the record. We will now recite and discuss the facts.
The plaintiff and the defendant Elva Brown were about the same age, married, and living in What Cheer, Iowa. They had known each other and had been very intimate friends for twelve years. They were both experienced automobile drivers and had both driven over the highway where this accident happened many times. On March 30, 1933, about one o'clock in the afternoon, Mrs. Wright, the plaintiff, with her little daughter, accompanied Mrs. Brown on a trip to Oskaloosa. Mrs. Brown was driving a Buick coupé which was owned by her codefendant, the What Cheer Clay Products Company. She had received permission to drive the car from her father, a Mr. Nelson, who was manager of the Clay Products Company. In making this trip they went south from What Cheer about five miles on a gravel road to primary highway No. 2, which is paved 18 feet wide and extends from Oskaloosa to Sigourney. They then proceeded west on highway No. 2 to Oskaloosa, about fifteen miles. It had been raining prior to the day in question, but when the party started to Oskaloosa the sun was shining and there was no rain. They remained in Oskaloosa until about 4:30 in the afternoon, when they proceeded toward home over the route indicated. At this time it had commenced to rain, and there was rain falling from the time they left Oskaloosa until about the time of or shortly after the accident. The accident in question happened after they had traveled about fourteen miles east on highway No. 2. In the vicinity of the accident there is a culvert extending under the pavement, and emptying into this on either side of the pavement are sluiceways for the purpose of permitting the water running down inclines extending both east and west from the culvert to run off from the pavement. The hill or incline extending to the west from this culvert is approximately 700 feet in length and the one extending east from the culvert is approximately 500 feet in length. The pavement, except where the sluiceways were constructed, had the ordinary cement curb, about 3 inches high, on both sides from near the top of the hills both east and west to the culvert. There was a crown in the center of the pavement about one inch high. At the time in question, when the car in which the ladies were riding reached the top of the hill or incline 700 feet west of the culvert, water was running down on either side of the pavement seeking its outlet at the sluiceways at or near the culvert. The car was driven down this incline and just after it had passed over the culvert it got out of control of Mrs. Brown, the driver, either by reason of skidding on some muddy water or silt collected on the right-hand or south side of the pavement at that place, or by reason of a tire on the car becoming deflated. At any rate, the car went out of control of the driver and, after traveling some 150 or 200 feet in a diagonal course northeast across the pavement, went headon into a ditch 2 or 3 feet deep and against a bank on the opposite side and resulted in seriously injuring Mrs. Wright, the plaintiff, and also injuring and severly shocking the driver, Mrs. Brown. The evidence shows that the Buick coupé was in good repair and operating condition; that the tires were not old and were all perfectly inflated; and that the windshield wiper in front of the driver was operating. It also appears that the muddy water on the sides of the pavement at and near the place of the accident was observable from near the top of the hill 700 feet west of the place of the accident, but there was nothing appearing inherently dangerous for ordinary automobile travel by reason of this.
With the conditions existing as detailed, the plaintiff, appellee contends that Mrs. Brown was guilty of recklessness in driving her automobile at an excessive speed and in failing to have her automobile under control when approaching the portion of the highway that was slippery and hazardous by reason of the water and silt, and in failing to keep a proper lookout for such dangerous places on the highway, and in failing to stop the automobile after she drove upon the slippery and hazardous place on the highway. The muddy water or silt extended but a short distance on either side of the pavement and did not cover the center or crown of the pavement; consequently, it could not have been more than an inch or an inch and one-half in depth. The testimony as to excessive speed, under existing conditions, is not at all impressive or convincing. Mrs. Brown's testimony shows that she was driving between thirty-five and forty miles an hour all the way from Oskaloosa to the place of the accident. A written statement signed by the plaintiff, Mrs. Wright, two or three weeks after the accident occurred, also shows that Mrs. Brown was driving between thirty-five and forty miles an hour at and prior to the time of the accident. The truth of this statement is denied by the plaintiff in her oral testimony, and she testified upon the trial that the car was being driven at approximately fifty miles an hour at the time of the accident. She also stated in her written statement that Mrs. Brown was not to blame for the accident and that when the car commenced to swerve Mrs. Brown did everything possible to keep it on the pavement and avoid an accident. There is also testimony of a traveling salesman and his companion to the effect that he was waiting at a small town five or six miles west of the place of the accident to drive on the highway when the Buick coupé drove past at a speed of from fifty to fifty-five miles an hour. These witnesses also testified that they...
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