Allbaugh v. Ashby
| Citation | 284 N.W. 816,226 Iowa 574 |
| Decision Date | 14 March 1939 |
| Docket Number | 44622. |
| Parties | ALLBAUGH v. ASHBY et al. |
| Court | United States State Supreme Court of Iowa |
Appeal from District Court, Washington County; J. G. Patterson Judge.
Action at law by guest in automobile against driver and owner for damages from personal injuries. Opinion states material facts. From judgment for plaintiff, defendants appeal.
Affirmed in part, reversed in part.
Gibson, Stewart & Garrett and R. C. Waterman, all of Des Moines, and S.W. Livingston, of Washington, for appellants.
Morrison & Morrison, of Washington, for appellee.
Appellee, Francis Allbaugh, was injured on December 18, 1936, about 11 a. m., while riding as a guest in an automobile driven by appellant, David Ashby, and brings this action at law against said David Ashby and his father, appellant, Charles E. Ashby, the owner of said automobile, based upon its alleged reckless operation. At said time appellant, David Ashby, was about 17 years old, and lived with his parents near Washington, Iowa, at which place he attended high school. Appellee was 16 years of age, lived in Washington, and also attended said school. The accident and resulting suit grew out of a trip which these boys and two other boys started to take from Washington to Burlington in a 1931 Chevrolet Coach driven by appellant, David Ashby.
They travelled east upon Highway No. 2, a paved road which passes through the south part of the neighboring town of Ainsworth, in an east and west direction. The pavement appears to be about 18 or 20 feet in width. At the east edge of Ainsworth, Highway No. 2 is intersected by Railroad Street, which runs south from the main part of town, and about 1/4 mile west by another north and south street. There was a 25 mile speed limit sign facing west on the south side of Highway No. 2 near this west intersection, and another such sign facing east on the north side of the highway just east of its intersection with Railroad Street. Most of the road traffic to and from Ainsworth goes over these intersecting streets. The highest place on Highway No. 2 between these intersections is about 40 feet west of Railroad Street. From that place it slopes downward to the east for more than a block to a bridge. Toward the west is a downgrade or gentle slope for about 400 feet from which point there is a slight upward slope farther west for about 600 feet.
There was evidence from which the jury might have found that appellant, David Ashby, was familiar with this highway through Ainsworth, with the speed limit signs and the 25 mile zone between them; that he knew his brakes were not working properly; that as he drove through this 25 mile zone his car " was making a lot of noise" ; that from the low point in the road to the point of collision, the Ashby car travelled at a speed of 50 or 60 miles per hour; that at that time the traffic on Highway No. 2 was heavy, and appellant knew he was nearing a busy intersection near the brow of a hill or slope, below which approaching cars would be visible for only a short distance. The jury might further have found from the evidence that from all places on the highway for more than a quarter of a mile west of Railroad Street, trucks and automobiles at the Railroad Street intersection and at least forty feet east thereof, were visible to the driver of an automobile coming from the west; that within the view of appellant, David Ashby, while his car was at least several hundred feet to the west, a slowly moving car hauling a trailer and travelling west on the highway, started to turn south at the Railroad Street intersection and that a few feet behind the trailer was a Ford truck with high stock rack, travelling slowly westward on the pavement, the top portion of which was visible to appellant, David Ashby, not later than the time when the car hauling the trailer had passed from the north side of the road and before the trailer had done so; that the Ashby car did not slacken its speed as it approached the intersection upon which the car and trailer were slowly moving across the pavement but that the rear end of the trailer was either at the south edge of the pavement or off the pavement when the Ashby car passed it; that when the Ashby car reached a point about 75 feet west of Railroad Street it swerved to the left or north side of the pavement so that the Ford truck was directly in its path at a distance in the neighborhood of 125 feet; that at and prior to the time the Ashby car veered to the left side of the pavement the Ford truck was visible to the appellant, David Ashby; that no apparent attempt was made to return the Ashby car to its proper side of the pavement and it continued to travel on the north side thereof without slackening its speed to and across the Railroad Street intersection and a few feet east thereof, at which place it collided head on with the truck, and as a result appellee received severe and permanent injuries.
The foregoing recitations are made for the purpose of considering one of the assignments of error urged by appellants, to wit: that the evidence was insufficient to warrant the court in submitting to the jury the question whether the accident was caused by the reckless operation of the Ashby automobile. While there is evidence in the record in conflict with many of such recitations, it is unnecessary to detail or consider the same in connection with this assignment of error.
The question of the sufficiency of evidence to warrant a recovery by a guest on the ground of reckless operation of a motor vehicle has been passed upon by this court a number of times, and very recently in Reed v. Pape, 224 Iowa __, 284 N.W. 106.This court has held in several cases that frequently no one factor such as speed alone could be definitely assigned as recklessness, but a combination of factors such as speed, plus limited visibility, congested traffic, slippery road surface or the like would be required. Mescher v. Brogan, 223 Iowa 573, 272 N.W. 645; Claussen v. Johnson's Estate, Iowa, 278 N.W. 297.
In the case at bar there was evidence of excessive speed with defective brakes through traffic in a 25 mile zone and across a well travelled intersecting street in a town and over the brow of a slope or hill which the driver knew limited visibility, with failure to slacken speed when confronted with a dangerous situation, failure to keep a lookout, or to have the car under control, swerving to the left side of a narrow paving, and continuing on the wrong side thereof in the face of visible oncoming traffic. We think the evidence upon this proposition was sufficient to justify its submission to the jury.
Appellant, Charles Ashby, urges that the evidence tending to show that the car was being driven with his consent was not sufficient to warrant the submission to the jury of the question of his liability and that the court erred in refusing to direct a verdict in his favor upon that ground.
The record shows that on different occasions David had driven appellee and other boys around Washington after school hours, and had once taken appellee to West Chester to see a football game. There was also evidence that after the accident in suit David said his father let him use the car and that appellant, Charles Ashby, said the car was one he let the boys use. David testified that his father provided the conveyance for him to go to school, instructed him not to drive too fast, not to drive around town much after school, to come right home after school, and not take any long trips without consulting him; that at the time of the West Chester trip he telephoned home and asked his mother if it would be all right if he went over there, that she said it was all right, and so he went; that on the occasion in controversy the boys all left their classes for the trip to Burlington at a time when school was in session and David didn't tell his father and mother about the trip.
From the testimony of Charles Ashby it appears that he had one...
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