Allbee v. Berry, 50795

• Decision Date: 15 January 1963
• Docket Number: No. 50795,50795
• Citation: 254 Iowa 712,119 N.W.2d 230
• Parties: Alvin ALLBEE, Guardian of Donald Allbee, a Minor, Appellant, Cross-Appellee, v. Robert BERRY, Appellee, Cross-Appellant.
• Court: Iowa Supreme Court

Page 230

119 N.W.2d 230

254 Iowa 712

Alvin ALLBEE, Guardian of Donald Allbee, a Minor, Appellant, Cross-Appellee, v. Robert BERRY, Appellee, Cross-Appellant.

No. 50795.

Supreme Court of Iowa.

Jan. 15, 1963.

Cook & Drake, Glenwood, for appellant.

Ross, Johnson, Stuart, Tinley & Peters, Council Bluffs, for appellee.

STUART, Justice.

Plaintiff's ward, his 16 year old son, who will hereinafter be referred to as plaintiff, was injured while riding as a guest in an automobile owned and operated by the defendant when it was involved in a one car accident. In the resulting action the jury returned a verdict in favor of the plaintiff in the amount of $821.40, the exact amount of the special damages. Plaintiff appealed claiming the verdict was inadequate. Defendant cross-appealed claiming that a verdict should have been directed in his favor on plaintiff's failure to prove defendant's recklessness.

I. As a decision favorable to defendant on his cross-appeal would eliminate the necessity of considering plaintiff's appeal, we will consider the cross-appeal first.

This is another guest case. We must determine whether the facts in this particular instance viewed in the light most favorable to the plaintiff are sufficient to engender a jury question as to defendant's recklessness. Recklessness is '* * * more than want of ordinary care. It must be shown that the operator of the vehicle used no care, coupled with a disregard for consequences, and to constitute recklessness, the acts must be such as to manifest a heedless disregard for or indifference to the rights of others. It requires actual knowledge of an existing danger or the presence of danger so obvious that the operator should have knowledge of it and proceeded without heed of or concern for the consequences, and that the conduct of the operator of the vehicle is such that the consequences of his actions are such that the injury is a probability rather than a possibility'. Lewis v. Baker, 251 Iowa 1173, 1177, 104 N.W.2d 575, 577.

Although there is considerable conflict in the evidence, a jury could find the facts hereinafter set out from the record. The defendant and his guests left the Allbee home in Thurman in an attempt to catch up with a car driven by Roger Patterson before it reached a 'T' intersection with highway 275 four miles away. Defendant was well acquainted with the road and had driven over it many times.

There is a crest of a hill one quarter to one-half mile west of the intersection. It is downhill east to the intersection from that point. At the top of the hill is a 2' X 2' sign warning 'stop ahead'. Six hundred feet west of the stop sign is a 4' X 4' sign, 'stop ahead'. The stop sign is 110 feet from the intersection. There were several other highway signs indicating the intersection. Two to two and one-half miles west of the intersection the speedometer in defendant's 1947 Chrysler registered between 100 and 105 miles per hour. He did not seem to slow down. At the top of the hill he was asked to put on the brakes but he did not do so. About one-half way down the hill he passed the Patterson car at a speed of 80 to 100 miles per hour. About 200 to 250 feet from the intersection he applied the brakes, but was unable to stop. He left skidmarks 144 feet on the highway, then went onto the shoulder, jumped a fence and ended up 80 feet in a field with the bumper down in the dirt. He was asked 3 or 4 times to apply the brakes as they came down the hill.

There is testimony as to a brake failure and the sheriff testified the skid marks were made by a car trying to turn and were not like braking skidmarks. However the evidence is not conclusive. The jury could have found that the brakes functioned properly or that plaintiff couldn't have stopped had they worked. There was no evidence of brake trouble at any prior time.

This evidence is sufficient to raise a jury question of recklessness under the definition hereinabove set out. To hold otherwise would require us to say as a matter of law that a person who, although thoroughly familiar with the road, proceeds downhill toward a 'T' intersection at which he must stop, at a speed in excess of 100 miles per hour, passes a car on the way and does not apply his brakes until he is within 200-250 feet of the intersection is not guilty of recklessness. This we cannot do. Reasonable minds could conclude that such speed under these particular circumstances constitutes recklessness. Lewis v. Baker, ibid.

There was evidence from which the jury could have concluded that the accident did not happen in this manner, but the factual dispute was for the jury's determination. The size of the verdict returned indicates that some of the jurors were not convinced of defendant's liability. This issue is discussed in the following division.

II. Plaintiff filed a motion for new trial based upon the inadequacy of the verdict. Rules which govern the trial court and this court when the award is excessive also apply in instances when the award is inadequate. We said in Tathwell v. City of Cedar Rapids, 122 Iowa 50, 54, 97 N.W. 96, 97: '* * * the power to set aside the verdict, when manifestly inconsistent with the evidence, and the result of a misconception by the jury of their powers and duties, is as fully recognized where the verdict is inadequate as where it is excessive; * * *'. This decision has been recently reaffirmed in Webster v. City of Colfax, 250 Iowa 181, 93 N.W.2d 91 and Feldhahn v. Van Deventer, Iowa, 115 N.W.2d 862. The Feldhahn case closely parallels this case as the trial court in both instances refused to grant a motion for new trial. There are few cases in Iowa involving appeals from inadequate verdicts as juries are generally not inclined to undervalue the injuries.

In this case the evidence on damages was uncontradicted. Plaintiff offered the evidence of Dr. Kerr, plaintiff's father and mother and his own testimony. Defendant offered no evidence upon this issue. In brief the evidence showed that the plaintiff suffered shock, numerous severe lacerations, fractured jaw, broken collar bone, shoulder separation and a fractured foot. There was permanent injury to the foot and a pronounced scar on the forehead. Dr. Kerr saw plaintiff from June 26th to June 30th following the accident and referred him to a dental surgeon and orthopedic surgeon for treatment. Dr. Kerr testified the fair and reasonable value of his services was $100.00. In pretrial conference it was agreed if proper...