272 N.W. 645 (Iowa 1937), 43849, Mescher v. Brogan

• Judge: ANDERSON, DONEGAN, PARSONS, KINTZINGER, STIGER, and MITCHELL, JJ., concur. SAGER, J., concurs in result.
• Parties: MESCHER v. BROGAN et al.
• Docket Number: 43849.
• Citation: 272 N.W. 645,223 Iowa 573
• Court: Iowa Supreme Court
• Date: 06 April 1937

Page 645

272 N.W. 645 (Iowa 1937)

223 Iowa 573

MESCHER

v.

BROGAN et al.

No. 43849.

Supreme Court of Iowa.

April 6, 1937

Appeal from District Court, Carroll County; P. J. Klinker, Judge.

This is an action for damages for personal injuries arising out of an automobile accident which occurred while the plaintiff-appellee was riding as a guest in an automobile owned by Louis L. Brogan (now deceased), and which was being driven by the appellant Francis Brogan with the latter's consent. The sole question involved is whether or not the conduct of the driver amounted to " recklessness" within the meaning of section 5026-b1 of the Code of 1935. The accident occurred at a turn in the highway, the defendant being unable to negotiate the turn because of the speed of his car. The plaintiff charged the defendant with negligence in not having his car under proper control within the assured clear distance, in attempting to turn a corner at such a rate of speed that the same could not be done without overturning the car, and in driving at an excessive rate of speed. It was the contention of the defendant-appellant that the plaintiff failed to make out a case of recklessness, and that the court erred in submitting this question to the jury. This matter was raised by a motion to direct a verdict, and motion for new trial and objections and exceptions to the court's instruction. There was a verdict for plaintiff, and defendants have appealed.

Affirmed.

Page 646

E. A. Wissler and Kline & Neu, all of Carroll, and C. D. Reed and Putnam, Putnam, Fillmore & Putnam, all of Des Moines, for appellants.

Salinger, Reynolds & Meyers, of Carroll, for appellee.

HAMILTON, Justice.

" Negligence" is want of ordinary care under the circumstances. " Ordinary care" means such care as an ordinarily prudent person would exercise. " Recklessness" is said to be conduct amounting to more than negligence. The surrounding circumstances in each particular case enter and must be considered in determining the question. As the danger becomes more manifest and apparent, the degree of care and caution to be taken must likewise increase. " Recklessness" is defined by this court in the case of Siesseger v. Puth, 213 Iowa, 164, at page 182, 239 N.W. 46, 54,

Page 647

as " proceeding without heed of or concern for consequences," and " implies ‘ no care, coupled with disregard for consequences." ’ In Neessen v. Armstrong, 213 Iowa, 378, 239 N.W. 56, 59, the meaning of " recklessness" is expressed in the following statement: " In order for conduct to be reckless within the meaning of the law, it must be such as to manifest a heedless disregard for or indifference to the rights of others." Sometimes the word " utter" has been added, as in the case of Levinson v. Hagerman, 214 Iowa, 1296, 244 N.W. 307, 308, where the court said: " This statute means that the plaintiff must show some act which would be pronounced as an utter indifference to the safety of the guest in his car." No amount of explanation can add much to the meaning to be implied from the use of the word " reckless." The difficulty comes in applying the rule to the facts in any particular case. In the case at bar it is the contention of the appellant that the defendants' motion to direct a verdict should have been sustained for the reason that under the facts, defendant's conduct did not rise to the point of recklessness. In passing upon this matter, the rule to be observed was well stated by Justice Wagner in his dissenting opinion in the case of Siesseger v. Puth, 213 Iowa, 164, at page 188, 239 N.W. 46, 56, in the following language: " The rule in regard to the submission to the jury of the question whether the conduct of defendant constitutes recklessness, is the same as applies to the determination of any other question of fact involved in the case. The rule is that if reasonable minds, having before them all of the evidence upon the question, could reach but one conclusion, the question then becomes one of law for the court. But if, under the proven or admitted facts, different minds might reasonably reach different conclusions, the question is then one of fact for the determination of the jury. See Sergeant v. Challis [213 Iowa, 57] 238 N.W. 442, and cases therein cited."

Clothed in a little different language, the same rule is announced in the second case of Siesseger v. Puth, 216 Iowa, 916, 248 N.W. 352, 357, by Justice Kintzinger, wherein he said: " Recklessness is an inference of fact to be drawn from the evidence offered, and is a matter for the determination of the jury. [Citing cases.] The same rule of law as to the sufficiency of the evidence in negligence cases should also apply to cases involving recklessness. It is the well settled law in negligence cases that if there is any evidence tending to show negligence, that question should be submitted to the jury. So likewise, in recklessness cases it should also be the rule that if there is any evidence tending to establish the charge of recklessness, that question should also be submitted to the jury. To hold otherwise in this case would be invading the province of the jury." In Wright v. What Cheer Clay Products Co. (Iowa) 267 N.W. 92, 95, Justice Anderson, speaking for the court, said: " It is not sufficient to show negligence, but the plaintiff must go further than this and show a rash, heedless, disregard of danger that would be apparent to or reasonably anticipated by a person exercising ordinary prudence and caution under existing circumstances." In order to be reckless within the meaning of the statute, one does not need to act willful, wanton, or with intent to injure.

Many other quotations could be made from the various decisions involving this question of reckless driving. But sufficient has been said to indicate the gist of the holdings of this court upon this subject. The question then is: Was there evidence from which the jury, acting as reasonable men, might find that the defendant in the instant case, at the time of the accident and immediately prior thereto, was proceeding without heed of, or concern for, consequences, or in such a way as to manifest a heedless disregard for, or indifference to, the rights of the guests in his car? What are the facts as shown by the testimony in this case?

The accident occurred on July 4, 1933, some time after 12 o'clock midnight, near the city of Jefferson, Iowa. A party of five young people in a Chevrolet car, driven by the defendant Francis Brogan, were going home from a dance which they had attended at Spring Lake. The plaintiff was sitting in the front seat of the car with the driver, and the others were in the back seat. There was evidence that the defendant was somewhat out of humor, due to the refusal of the plaintiff to accede to some of his wishes made known to her at the dance, and at the time they started home he was still in this frame of mind. The car was parked between...