Brown v. Martin, 41805.

• Citation: 216 Iowa 1272,248 N.W. 368
• Decision Date: 15 May 1933
• Docket Number: No. 41805.,41805.
• Parties: BROWN v. MARTIN.
• Court: United States State Supreme Court of Iowa

216 Iowa 1272

248 N.W. 368

BROWN

v.MARTIN.

No. 41805.

Supreme Court of Iowa.

May 15, 1933.

Appeal from District Court, Boone County; O. J. Henderson, Judge.

Action for damages because of personal injuries sustained by plaintiff in an automobile accident in which plaintiff was a guest without hire in defendant's automobile. Verdict and judgment for plaintiff. Defendant appeals.

Reversed.

KINTZINGER, MITCHELL, and STEVENS, JJ., dissenting.Hallagan, Fountain & Stewart, of Des Moines, and Dyer, Jordan & Dyer, of Boone, for appellant.

Doran, Boone & Doran, of Boone, for appellee.

DONEGAN, Justice.

Plaintiff and defendant were both engineers in the employ of the Chicago & Northwestern Railway Company, and were residents of Boone, Iowa. They had been associated as such coemployees of the railway company for about forty years. On November 14, 1930, plaintiff and defendant, together with one Adkins, who was a locomotive fireman in the employ of said railway company, set out on a hunting trip from Boone, Iowa, to the vicinity of Humboldt, Iowa. The route which they pursued took them through the city of Fort Dodge, Iowa, and from there they proceeded northward over paved highway No. 169. About 8 miles north of Fort Dodge the pavement ended, and there was a stretch of graveled road extending from the end of the pavement for about one-half mile northward to what was known as the Butterworth corner. The car in which they were riding was a Studebaker President eight sedan. Defendantwas the owner of this car, and was seated in the left-hand front seat driving, and plaintiff was also in the front seat to the right of defendant. The other passenger, Adkins, was in the back seat. As they approached the end of the paved road, there was a sign approximately 400 feet to the south of the end of the pavement which contained the word “Pavement Ends.” Between this sign and the end of the pavement there was another sign which may be referred to as the “Road under Construction” sign. About or perhaps a short distance south of the “Pavement Ends” sign there was a slight rise in the road, and from there to the northward there was a slight down grade for some distance beyond the scene of the accident. From the end of the pavement northward to the Butterworth corner, the road was maintained as a graveled primary road. Where the gravel joined the pavement there was a stretch of approximately 30 feet in which the grade had been raised and new gravel placed thereon to meet the end of the pavement. This gravel extended slightly over the north end of the pavement so that there was no drop off at the end of the pavement. As the automobile proceeded northward off the end of the pavement and reached a point approximately 30 to 50 feet north thereof, it began to swerve. Defendant tried to right it and direct its course along the roadway, but was unable to do so, and, at a point about 150 feet from the end of the paving, the automobile turned over in the road. After turning over the first time, it again turned over once or perhaps twice, and stopped standing upright on its wheels and facing southward in a shallow ditch to the right or east side of the road, at a point approximately 270 to 300 feet north of the end of the pavement. The passenger, Adkins, appears to have been thrown out of the automobile when it turned over the first time. The top covering of the automobile was torn off as it turned over, and when it turned over the second time both the plaintiff and defendant were thrown out on the road. As a result of the accident, the plaintiff received injuries for which he sued.

Plaintiff was the guest of the defendant without hire, and in his petition he alleged that the accident and injuries sustained by him were caused by the reckless operation of the car by defendant. In his petition plaintiff alleged a great many acts on the part of defendant which he claimed constituted recklessness, but the trial court reduced the charges of recklessness to two: First, that defendant was reckless in operating his automobile at a high, dangerous, and excessive rate of speed as he drove off the pavement and onto the graveled portion of the highway; and, second, that he was guilty of reckless operation of said automobile in failing to have it under control at and prior to the time it was upset and plaintiff was injured. Defendant's answer admitted that plaintiff accompanied him on the automobile trip as his guest in an automobile owned and driven by the defendant, and that the accident occurred while so engaged, at or near the place described in plaintiff's petition, but denied all other allegations of plaintiff's petition, and specifically denied that any injuries sustained by plaintiff were caused by any recklessness on the part of the defendant.

On the trial of the case, after plaintiff had rested, defendant made a motion for a directed verdict in his favor, which was overruled. This motion was repeated at the close of all the evidence, and again overruled. The case was submitted to a jury which returned a verdict for the plaintiff. Defendant filed a motion for new trial and exceptions to instructions, which were also overruled by the court and judgment was thereupon entered upon the verdict. From the verdict and judgment and from all rulings of the court the defendant appeals.

Defendant sets out 33 grounds which he relies upon for reversal. The first and second errors relied upon for reversal are based, respectively, on the court's refusal to direct a verdict in favor of the defendant at the close of the plaintiff's evidence, and the court's refusal to direct a verdict in favor of the defendant when defendant's motion was renewed at the close of all the evidence. Several grounds are enumerated upon which defendant's motion for a directed verdict are based, but these grounds may be reduced to the general proposition that there was not sufficient evidence of defendant's reckless operation of the automobile to make this a question for the jury's determination.

[1][2] The plaintiff was a guest not for hire in the automobile owned and driven by the defendant. This action is therefore governed by the provisions of section 5026-b1 of the Code of 1927, which is as follows: “The owner or operator of a motor vehicle shall not be liable for any damages 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 intoxicating liquor or because of the reckless operation by him of such motor vehicle.” This section of the Code was originally enacted as chapter 119 of the Acts of the 42d General Assembly, as an amendment to section 5026 of the Code of 1924. Prior to its enactment the owner or operator of an automobile was liable for all damages sustained by a passenger not for hire in such automobile, which were due to negligence of the driver. The effect of the amendment to the statute is to release the owner and operator from all damages to a guest who is a passengernot for hire, except in cases where the damages are caused as the result of the driver being under the influence of intoxicating liquor or because of the reckless operation of the motor vehicle by the driver. There is no claim that the defendant in this case was under the influence of intoxicating liquor, and the only question we have for consideration is whether the damage done to the plaintiff was caused by the defendant's reckless operation of his automobile. The effect of the change of the statute and the meaning of the term “reckless operation” were first considered by this court in the case of Siesseger v. Puth, 213 Iowa, 164, 239 N. W. 46, 54. In that case Justice Grimm, in a very exhaustive opinion, set out the meaning of the words “reckless” and ““recklessness,” as given in the decisions of the courts of various jurisdictions, and said: “In light of the circumstances under which said chapter 119 was passed, it is apparent, we think, that the Legislature intended the word ‘reckless' therein to mean ‘proceeding without heed of or concern for consequences.’ To be ‘reckless,’ one must be more than ‘negligent.’ Recklessness may include ‘willfulness' or ‘wantonness,’ but if the conduct is more than negligent, it may be ‘reckless' without being ‘willful’ or ‘wanton,’ but to be reckless in contemplation of the statute under consideration, one must be more than negligent. Recklessness implies ‘no care, coupled with disregard for consequences.”D’ In this opinion it was also held that recklessness, within the meaning of the statute, was not a degree of negligence, but was something entirely beyond and distinct from negligence.

Again, in the case of Neessen v. Armstrong, 213 Iowa, 378, 239 N. W. 56, 59, this court was called upon to consider the meaning of the term “reckless operation,” and, speaking through Justice Wagner, we said: “While, if the action were such as could be founded on negligence, the jury might be allowed to find, from the evidence, that the defendant was guilty of negligence, that is, that he failed to exercise such care as an ordinarily careful and prudent person would have exercised under the same circumstances, yet that does not solve the problem. This action is founded upon recklessness, which means more than negligence. It means proceeding without heed of, or concern for, consequences. See Siesseger v. Puth, 213 Iowa, 164, 239 N. W. 46. 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.”

The meaning of the term “reckless operation,” as contained in the statute and as thus interpreted by the Siesseger and Neessen Cases, has been approved in the subsequent cases of Wilde v. Griffel et al., 214 Iowa, 1177, 243 N. W. 159, and Levinson v. Hagerman et al., 214 Iowa, 1296, 244 N. W. 307.

It is quite apparent from the...