Anderson v. Elliott

• Decision Date: 08 April 1953
• Docket Number: No. 48229,48229
• Citation: 244 Iowa 670,57 N.W.2d 792
• Parties: ANDERSON v. ELLIOTT.
• Court: Iowa Supreme Court

Page 792

57 N.W.2d 792

244 Iowa 670

ANDERSON v. ELLIOTT.

No. 48229.

Supreme Court of Iowa.

April 8, 1953.

Bradshaw & Crawford, of Fort Dodge, for appellant.

Mitchell & Mitchell and Vincent Powers, of Fort Dodge, for appellee.

THOMPSON, Justice.

Plaintiff's action is brought to recover damages alleged to have been caused by the wrongful death of her decedent occasioned by injuries received while a passenger in defendant's Buick convertible automobile on the evening of August 9, 1948. The trial court submitted the issues to a jury which returned a verdict for plaintiff. Defendant appeals from judgment rendered upon the verdict, and assigns error on the part of the trial court as follows: 1, In denying defendant's motion for a peremptory verdict made at the close of plaintiff's evidence and renewed at the close of all the evidence,--the material reason why it is thought said motion should have been sustained being that there was insufficient evidence of recklessness of the defendant to support a jury finding in plaintiff's favor; 2, in admitting a photograph, plaintiff's exhibit 4, into evidence; 3, in admitting a sketch, or plat, plaintiff's exhibit 6, into evidence; 4, in admitting into evidence the testimony of the witness Dowd as to the speed of plaintiff's car at a point which defendant thinks was too remote from the scene of the accident; and 5, in refusing to give two requested instructions. These questions were each raised during the course of the trial, and by motion for new trial following the verdict. The pertinent facts will be set forth in the several divisions of the opinion which follow.

Cases under the guest statute are nearly always troublesome. They give rise to much difference of opinion among attorneys, and have been known also to trouble the courts. The guest statute requires that the plaintiff make a jury question either upon the issue of recklessness or of intoxication of the driver of the automobile. The latter issue was taken out of the instant case by a special finding of the jury, which said the defendant was not intoxicated. So we have for determination as the major problem in the case, not whether the evidence proves defendant was guilty of recklessness, but whether it makes a sufficient showing so that the trial court was warranted in submitting the question to the jury and the jury was justified in finding defendant was reckless within the meaning of section 321.494 of the Code of 1946, I.C.A. It is not for the court to say whether he was actually reckless; its problem is, does the record so clearly fail to show recklessness that there was nothing for the jury to consider? Unless this question is answered in the affirmative there is a jury question. It must be kept in mind that the burden is upon the plaintiff to show recklessness. Also there is the rule, repeated ad infinitum, that the evidence must be taken in its aspect most favorable to the plaintiff when it is urged a verdict should have been directed against him. It is a question not only of whether there was a conflict in the evidence, but whether, even as to undisputed facts, they are such that reasonable minds might differ in interpreting them; specifically, in arriving at differing conclusions that the defendant was or was not reckless in his operation of his motor vehicle.

On the evening of August 9, 1948, sometime after 9 o'clock, plaintiff's decedent, Stanley Anderson, and the defendant were riding in the latter's Buick convertible automobile, 1947 model, on primary highway 5 in Calhoun county. They had left Fort Dodge a short time before and were proceeding westward. The pavement was dry. Two miles south of the town of Pomeroy this highway takes a fairly wide curve to the north and proceeds in that direction into the town. Primary highway 17 runs north and south through Calhoun county, making a junction with Number 5 at the north end of its curve above described, and continuing over the same pavement for some miles. At the point where Number 5 leaves its westward direction and enters the curve to the north above described, its course, if continued straight west, would have brought it to an intersection with Number 17 in a distance of 340 feet, according to plaintiff's evidence. Although Number 5 turns north as described, there is a strip of pavement running straight west from the beginning of the curve, which intersects at right angles with Number 17 after covering the 340 feet above referred to. The two highways and this paved strip are each twenty feet wide and form a rough triangle, with Number 17 running north and south along the west side, Number 5 through its curve to the north and west forming the hypotenuse, and the paved strip running east and west along the south between Number 17 and the point where Number 5 turns to the northwest. Enclosed in the triangle, at the time of the accident, was a plot of ground described as being about an acre in extent. The highways on each side having been graded or filled, this triangular strip, described as 'pie-shaped' lay several feet lower than the shoulders of the surrounding roads.

On the west side of Highway 17, immediately opposite the point where the strip of pavement running straight east to Number 5 intersects it, there is a gravel road extending on westward. There are stop signs on each side of Number 17 at this point. Plaintiff's evidence shows that there is a curve warning marker on the shoulder of Number 5, 742 feet east of the point of beginning of the curve to the northwest, and from 175 to 200 feet west of that is a sign showing the junction with Number 17. Defendant testifies he had been over the highway many times and was thoroughly familiar with it. As his car approached the curve from the east, and while he was about one and one-quarter miles distant, he passed a truck driven by one Dowd. Dowd, an experienced driver, testified that defendant's car was traveling at eighty miles per hour. It was out of sight almost immediately and he could not say whether it changed speed after it went by him. There was a slight rise in the highway, described as a 'knoll,' about three-quarters of a mile east of the point where Number 5 begins its northwest curve, which would make it about one-half mile west of the point where defendant's car passed Dowd. The latter said that when he was 'right on that knoll' he saw some beams of light in the air. These were from the Elliott car which had evidently reached the beginning of the curve, gone off the highway and rolled over so its lights pointed upward, momentarily at least, by the time Dowd had reached the top of the rise in the highway. Dowd estimates the elapsed time as a matter of seconds; perhaps a minute.

Further upon the question of speed, Wayne Hansen, who had driven from the west on the gravel road which intersects Number 17 at the same point where the paved strip of 340 feet before referred to reaches it from the east, had stopped his car at the stop sign on the west side of 17 just before the defendant's automobile approached the curve from the east on Number 5. He estimated the speed as sixty miles per hour 'or better.' His testimony is that as it reached the beginning of the curve the Elliott car turned a little to the right, 'only he didn't turn as far as he should have to stay on the highway.' The witness heard the sound of brakes 'screeching' as the automobile turned to the right, then it went on over the shoulder and into the lower triangular area enclosed by Nos. 5 and 17 and the 340 foot paved strip connecting them across the south side of the triangle. The car went end over end off the shoulder and rolled over in the triangle before coming to a stop.

Other evidence for plaintiff is that there were skid or burned rubber marks on the paving on Highway 5 commencing 176 feet east of the point on the shoulder where indentations show the car left the highway. These burns were noticed and measured the next day. They extended 33 feet west from the point where they started. From there to the place where the car left the highway as shown by the shoulder marks, a distance of 143 feet, there were no signs the brakes had been applied. The skid marks began 53 feet east of the point where No. 5 turns northwest, and ended 20 feet east of the same point. From the point where the car left the shoulder to where it came to rest was, according to one of plaintiff's witnesses, 75 feet.

The defendant, as a witness for himself, says he was traveling about 60 to 65 miles per hour as he approached the curve on Number 5. He denies he meant to follow the curve, but says it was his intention to go straight ahead on the paved 340 foot strip, stop at the stop sign on the east side of Number 17, turn there and go back. His explanation of the accident is that as they approached the curve Anderson, who had been operating the radio in an attempt to find certain music he liked, suddenly looked up, saw the approaching turn in the highway, and seized either the wheel or the driver's arm, causing him to lose control of the car. It is the plaintiff's theory that Elliott meant to follow the curve and was going at such a rate of speed that he was unable to do so, or did not see it in time, although he was familiar with the highway. There is of course no one except Elliott who knows his real intention, but we think the jury was not bound to accept his version. He says at times he can remember nothing of what happened, although it is not clear just when he claims this 'blacking out' commenced. But his first version was that Anderson seized the wheel; then that he seized his arm, and he supports this latter statement by saying the following day he found heavy bruises in the form of fingerprints on his right arm. A witness, who saw his arm, denies there were such prints. His contradictory statements as to the seizing of the wheel or his arm by Anderson, the fact he does not claim to remember slowing his speed in preparation for...