Christopherson v. Christensen

• Decision Date: 08 February 1966
• Docket Number: No. 51936,51936
• Parties: Betty CHRISTOPHERSON, as Administrarix of the Estate of Raymond Christopherson, deceased, Appellant, v. Ronald CHRISTENSEN and Lavern Christensen, jointly and individually, Appellees.
• Court: Iowa Supreme Court

Page 146

140 N.W.2d 146

258 Iowa 648

Betty CHRISTOPHERSON, as Administrarix of the Estate of Raymond Christopherson, deceased, Appellant, v. Ronald CHRISTENSEN and Lavern Christensen, jointly and individually, Appellees.

No. 51936.

Supreme Court of Iowa.

Feb. 8, 1966.

Rehearing Denied April 5, 1966.

Wunschel & Schechtman, Carroll, and Paul D. Strand, Decorah, for appellant.

Edward S. White, Carroll, for appellees.

LARSON, Justice.

Plaintiff's action is brought to recover damages alleged to have been caused by the wrongful death of her decedent while a passenger in defendants' automobile at about 12:30 A.M. on the night of December 15, 1963. Although the title to the car was in his father's name, we shall designate only the driver Ronald Christensen here as defendant. Plaintiff's petition alleged inter alia that defendant driver 'recklessly and while he was intoxicated, drove' his vehicle off the roadway into a ditch, throwing decedent out and causing his death. The defendant denied this allegation and affirmatively alleged, if the evidence would establish those allegations, that plaintiff's decedent assumed the risk. The trial court overruled defendant's motions to direct and submitted the issues to a jury, which returned a verdict for plaintiff. Thereafter, the trial court sustained defendant's motion for judgment notwithstanding the verdict, and plaintiff appeals. Two assigned errors are relied upon for reversal. Appellant contends the trial court erred in sustaining appellees' motion for judgment on the ground that decedent had assumed the risk as a matter of law, and on the ground that appellant had produced insufficient evidence to sustain her burden of proof as to recklessness under section 321.494, Code of Iowa, 1962. This section, known as the Iowa Guest Statute, provides 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.'

I. Cases under the guest statute are nearly always troublesome and this one is no exception. The burden to establish the charge of recklessness or of intoxication of the driver of the automobile in a guest case, like other affirmative allegations, is upon the pleader (rule 344(f)5, R.C.P.), but in passing upon a motion to direct, the evidence must be viewed in its aspect most favorable to plaintiff. Rule 344(f)2, R.C.P. With these well-established primary rules in mind, we turn to the evidence as disclosed in the record.

II. After work on December 15, 1963, the defendant Ronald Christensen, age 20, the decedent Raymond Christopherson, age 34, and other employees of an Audubon feed mill, met socially at a local tavern between 3 and 4 P.M. During the next three or four hours they each had four or five glasses of beer. Defendant testified he went to a cafe where he ate a hamburger and french fries and drank a cup of coffee. Decedent went home to clean up. They met again perchance at a pool hall and tavern about 10 P.M., played a game of pool, and then decided to go to Carroll 27 miles away 'to see what was going on.' Decedent was a newcomer in that locality and they had never been out together before. That trip was made without incident and, upon arrival at about 10:45 P.M., they visited the Western Inn tavern and each had a bottle of beer. A half hour later they went to the Pastime tavern, where each had two bottles of beer. They stayed until nearly closing time at 12 o'clock midnight, and then decided to return home.

Defendant recalled that after they had started to leave Carroll, he asked decedent if he wanted to drive, stating he was getting sleepy. The next thing he knew he 'woke up in the ditch' near Coon Rapids. He made his way to the road where he was picked up by a motorist and taken to a doctor's office in Coon Rapids. He told the doctor he had been alone, but when a local officer investigated the scene of the accident he found decedent's body some 20 to 30 feet northeast of the wrecked 1961 Pontiac two-door automobile.

The party who brought defendant into Coon Rapids testified he saw the wrecked car in the field to his right, and that as defendant came to his car he staggered a little, was weaving some, and had to be helped into the car. He detected an odor of beer, but said defendant's only complaint was that he was cold. The temperature at that time was 18 degrees below zero. The night was clear and the blacktop highway was somewhat frosty. The place of the accident was where the road turned to the left at the beginning of an S curve. There was a highway commission curve sign north of this curve.

Donald Smith, the marshal at Coon Rapids, investigated the accident and found decedent's body. The next morning he took notes and made measurements. He testified there was a cement slab railing along the west side of this stretch of road designed to avoid such accidents, that due to the road buildup and snow next to it, the original height of 24 inches had been reduced to 12 to 16 inches, that he saw car tracks by the railing which indicated the right front wheel had gone over the railing near the start of the curve, that a car had straddled the railing for about 50 feet, and as the railing curved to the east the left wheels had gone over the railing. From there the tracks followed the bank around the curve approximately 80 to 90 feet, when it appeared the rear wheels began to drop or slide westward down a very steep bank. Then it appeared from the indentations that the car rolled over some 30 feet, flipped over agin, and came upright in a fence row taking out four fence posts for 30 feet. It came to rest in a field some 30 feet further on, and was located about 75 feet from the roadway. The banks were snow-packed and drifted on the east side, so snow was pushed aside as the car came down the bank. Apparently the left door of the car was broken off in the overturn and it was found 50 to 60 feet southeast of the car. Except for these bits of physical evidence and some scratches found in the cement rail made by a car frame, there was no evidence of brake application or tire marks on the highway. No one testified regarding speed, and no one opined as to how the right wheel of defendant's car happened to cross over this railing, designed to deflect a motor vehicle which failed to make the turn properly.

When passing on defendant's motion for directed verdict at the close of the evidence, the trial court expressed the view that the evidence of recklessness was insufficient for jury consideration, but in view of the close questions as to intoxication and the assumption of risk, it was going to overrule the motion and would be disposed to review the matters upon proper motion after jury consideration, if necessary. After a jury verdict for plaintiff in the sum of $19,500.00, that motion was made. The court then concluded it erred in submitting the issue of recklessness, that although there was probably sufficient evidence of intoxication for jury consideration, the evidence compelled a finding that decedent assumed the risk as a matter of law. Thus there could be no recovery. We are inclined to agree with that conclusion and affirm the judgment for defendant.

III. Reckless operation of a motor vehicle, as used in section 321.494, means more than negligence, more than want of ordinary care. Kauzlarich v. Fitzwater, 255 Iowa 1067, 1069, 125 N.W.2d 205; Clark v. Marietta, Iowa, 138 N.W.2d 107; Beletti v. Schuster, 253 Iowa 1166, 115 N.W.2d 858; Winter v. Moore, 255 Iowa 1, 12, 121 N.W.2d 82, 88, and citations; Allbee v. Berry, 254 Iowa 712, 714, 119 N.W.2d 230; Nehring v. Smith, 243 Iowa 225, 49 N.W.2d 831; Paulson v. Hanson, 226 Iowa 858, 285 N.W. 189; Siesseger v. Puth, 213 Iowa 164, 239 N.W. 46. We have consistently said it means, proceeding with no care coupled with disregard for consequences, the acts must manifest a heedless disregard for or indifference to the rights of others in the face of apparent danger or danger so obvious that the operator should be cognizant of it, when the consequences of such actions are such that an injury is a probability rather than a possibility. An error in judgment does not amount to recklessness. Kauzlarich v. Fitzwater, supra; Clark v. Marietta, supra; Beletti v. Schuster, supra; Winter v. Moore supra; Fritz v. Wohler, 247 Iowa 1039, 1041, 78 N.W.2d 27, 28. Also see Volume 8, No. 2, Drake Law Review, May 1959, and cases cited therein.

Appellant contends the evidence, taken in the light most favorable to her, discloses excessive speed, a sleepy driver, and excessive beer consumption. Thus, our problem is whether there was sufficient evidence to sustain those contentions. Since there was no direct evidence of speed, plaintiff relies upon circumstantial evidence. If it was insufficient to prove excessive speed under the circumstances and fails to disclose a heedless disregard for consequences and no care in the operation of the car at the time of this accident, she cannot recover. She cites and relies upon cases where there was direct or conclusive evidence of excessive speed, not present here, where the circumstances revealed would justify a finding of recklessness. Anderson v. Elliott, 244 Iowa 670, 57 N.W.2d 792; Allbee v. Berry, supra, 254 Iowa 712, 714, 119 N.W.2d 230; Lewis v. Baker, 251 Iowa 1173, 104 N.W.2d 575; Delay v. Kudart, 256 Iowa 523, 128 N.W.2d 201.

Speed or excessive speed is not always an essential element of recklessness, but when present must be considered. Speed, we have said, does not operate in a vacuum. Anderson v. Elliott, supra; Allbee v. Berry, supra; Lewis v. Baker, supra; Delay v. Kudart, supra; Martin v. Cafer, Iowa, 138 N.W.2d 71.

In the Delay case plaintiff's chief reliance...