Anderson v. City of Council Bluffs, Pottawattamie County

• Decision Date: 25 February 1972
• Docket Number: No. 54732,54732
• Citation: 195 N.W.2d 373
• Court: Iowa Supreme Court
• Parties: Correne ANDERSON, Appellee, v. The CITY OF COUNCIL BLUFFS, POTTAWATTAMIE COUNTY, Iowa, Appellant. Correne ANDERSON, Appellee, v. Richard SCOTT, Appellant.

Page 373

195 N.W.2d 373

Correne ANDERSON, Appellee, v. The CITY OF COUNCIL BLUFFS, POTTAWATTAMIE COUNTY, Iowa, Appellant.

Correne ANDERSON, Appellee, v. Richard SCOTT, Appellant.

No. 54732.

Supreme Court of Iowa.

Feb. 25, 1972.

Smith, Peterson, Beckman, Willson & Peterson, and Hugh Finerty, Council Bluffs, for appellants.

Peters, Walker, Campbell & Pearson, Council Bluffs, for appellee.

MOORE, Chief Justice.

On September 21, 1966, plaintiff while accompanying her critically injured son in a City of Council Bluffs ambulance sustained serious injuries as a result of being thrown about the interior thereof. When it proceeded through the crowned intersection of North 26th Street and Avenue D at a high rate of speed a 'roller-coaster' effect resulted, causing the ambulance to bounce and swerve.

Plaintiff commenced two separate damage actions which were consolidated for trial. The first was against the city. As submitted to the jury the city's liability was based on plaintiff's allegations of negligence for failure to maintain the surface of the intersection in a reasoanbly safe condition. The second action was against city fireman, Richard Scott, for negligent driving. In answers to special interrogatories the jury found plaintiff was not a guest in the ambulance; the purpose of the trip was for some definite and tangible objective or purpose of defendants; Scott was negligent in failing to keep a proper lookout and the city was negligent in that it maintained or permitted to exist an unreasonable depression in the intersection of North 26th and Avenue D which the city knew or should have known would be hazardous to the public using the thoroughfare.

Defendants appeal from judgment on $26,000 verdict for plaintiff. We affirm.

Defendants argue their respective motions for directed verdict and post verdict motions based on insufficiency of evidence should have been sustained.

I. Defendants contend the evidence was insufficient as a matter of law to submit plaintiff's cause against Scott on alleged ordinary negligence.

Code section 321.494 provides: 'Guest statute. The owner or operator of a motor vehicle shall not be liable for any damage 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 an alcoholic beverage, a narcotic, hypnotic or other drug, or any combination of such substances, or because of the reckless operation by him of such motor vehicle.

The purpose of our guest statute is to protect motor vehicle drivers and owners from claims made by persons who were riding in the motor vehicle as guests or by invitation and not for hire except as in the statute provided. It seeks to protect the Good Samaritan from claims based on negligence by those invited as a courtesy. Nielsen v. Kohlstedt, 254 Iowa 470, 473, 117 N.W.2d 900, 903, and citations.

However, one who rides in a motor vehicle for the definite and tangible benefit of the owner or operator is not a guest within the meaning of the guest statute and recovery for injuries suffered by such rider may be based on the negligence of the operator. And one who claims the guest statute is not applicable has the burden to prove his status was other than a guest. Wharff v. McBride, Iowa, 183 N.W.2d 700, 703, 704; Jackson v. Brown, Iowa, 164 N.W.2d 824, 826, 827, and citations.

What was plaintiff's status while riding in the ambulance rushing her son to the hospital? The record includes evidence the city owned the ambulance and regularly used city firemen to render emergency ambulance service for which the city made a fixed service charge. For transportation of a minor the parents were billed.

When plaintiff's minor son fell through a glass door neighbors called the ambulance and on arrival at plaintiff's home the son was placed in the ambulance. There is evidence one of the firemen then said 'someone has to go along' or 'somebody is going to have to go along' or something to the effect it was necessary for someone to accompany the little boy. Plaintiff and a neighbor then got into the ambulance and on the way to the hospital both were injured as the ambulance passed through the intersection of North 26th Street and Avenue D at 40 to 50 miles per hour. Plaintiff's injuries included a broken hip.

The facts here are similar to those in Sheldon v. City of Burlingame, 146 Cal.App.2d 30, 303 P.2d 344, where plaintiff sustained personal injuries while riding in a police vehicle driven by a city policeman. When plaintiff finished his work at a restaurant he either asked to be driven or was offered a ride home by the policeman. While on the way an accident occurred and plaintiff was injured. The court held plaintiff was not a guest as a matter of law, provided the trier of fact found the officer was acting within the scope of his employment.

At pages 35, 36 of 146 Cal.App.2d, pages 347, 348 of 303 P.2d, the court states: 'If the driver is paid to transport a certain class of passengers, then each member of that class is thereby removed from the category of guest, although actual payment of the fare is not made by the individual passenger. * * * If the trier of fact holds that the act of taking appellant home was a proper exercise of Ruhl's discretion as a police officer, then appellant thereby qualified as a member of a class which Ruhl was paid to transport as a part of his police duties. * * * When a public employee is driving a public vehicle and transporting a person in it in the performance of his official duties it is difficult to conceive of him as a 'host' or a rider as a 'guest' within the purpose and intent of the 'guest statute'.' See also Carey v. City of Oakland, 44 Cal.App.2d 503, 112 P.2d 714 (plaintiff riding in city ambulance); Smith v. Fall River Joint Union High School Dist., 118 Cal.App. 673, 5 P.2d 930 (plaintiff riding in school bus driven by a paid driver); McGuire v. Armstrong, 268 Mich. 152, 255 N.W. 745 (plaintiff riding with county nurse); Elliott v. Behner, 146 Kan. 827, 73 P.2d 1116 (plaintiff riding in county truck).

It is undisputed defendant Scott was a public employee engaged in the performance of his official duties at the time of the accident. The jury could and apparently did find Scott in the performance of his duty as an ambulance driver acted for the definite and tangible benefit of the public and for his own benefit in the form of wages. We hold there was sufficient evidence to allow submission of the question of plaintiff's status to the jury as well as all other essential elements of plaintiff's case against defendant Scott. Under the facts the trial court might well have held as a matter of law plaintiff was not a guest in the ambulance.

II. Defendant city argues the evidence was insufficient as a matter of law to show the city negligent in permitting to exist an unreasonable depression in the intersection of North 26th Street and Avenue D. We do not agree.

First it must be noted the accident here involved occurred prior to the effective date (January 1, 1968) of chapter 405, Acts of the 62nd General Assembly, now Code chapter 613A, which abrogates city governmental immunity. To avoid any claim of governmental immunity plaintiff based her claim on a breach of defendant city's duty to exercise reasonable care to keep its streets in reasonably safe condition under Code section 389.12. It provides: 'Duty to supervise. They shall have the care, supervision, and control of all public highways, streets, avenues, alleys, public squares, and commons within the city, and shall cause the same to be kept open and in repair and free from nuisances.'

This specific statutory provision supersedes any theory of governmental immunity. Walker v. City of Cedar Rapids, 251 Iowa 1032, 1038, 103 N.W.2d 727, 731.

Dale J. Mills, city engineer, testified the customary design for a crown in such an intersection as involved here is three inches but this crown was in excess of five inches. He stated it would be hazardous to traverse the intersection at 25 to 30 miles per hour. Other testimony showed the lower areas had...