Codner v. Stowe
| Citation | 208 N.W. 330,201 Iowa 800 |
| Decision Date | 06 April 1926 |
| Docket Number | 37302 |
| Parties | LENA CODNER, Appellee, v. E. W. STOWE, Appellant |
| Court | United States State Supreme Court of Iowa |
Appeal from Wright District Court.--SHERWOOD A. CLOCK, Judge.
ACTION for personal injuries received by plaintiff while riding as an invited guest in an automobile driven by defendant, and alleged to have been caused by defendant's negligence. There was a verdict for the defendant, which the court, on motion of plaintiff, set aside. From the order setting aside the verdict and granting a new trial, the defendant appeals.
Affirmed.
Crissman & Linville and Nagle & Hill, for appellant.
Price Burnquist & McCall, for appellee.
VERMILION J. DE GRAFF, C. J., and STEVENS and FAVILLE, JJ., concur.
The plaintiff and appellee sued to recover damages caused by personal injuries received while riding in an automobile owned and driven by the defendant. Upon a trial to a jury there was a verdict for the defendant. The court sustained a motion by the plaintiff for a new trial, and set the verdict aside. The defendant appeals from this ruling.
The motion for a new trial was based upon alleged error of the trial court in giving three designated instructions, and on the ground that the verdict was contrary to law. The motion was sustained generally.
I. It is undisputed that appellee's injuries were caused when the car in which she was riding as a guest, and upon the invitation of appellant, went into a ditch on the left-hand side of the road. The court instructed that the acts of negligence relied upon by the appellee were: (1) That, prior to the moment of the accident, the defendant was driving said car at an excessive rate of speed. (2) That, notwithstanding the warning given by the passengers in the automobile, defendant drove said car at a high and excessive rate of speed. (3) That the defendant drove said car at said high and dangerous rate of speed upon loose gravel; that the car skidded, and defendant lost control thereof. This appears to be accepted by both parties as an accurate statement of the negligence charged in the petition.
In the next instruction, the court charged that, to entitle plaintiff to recover, she must establish by a preponderance of the evidence that the defendant was negligent "in the respects charged in the petition."
The objection to this instruction is not, as we understand it, so much to the reference to the petition to ascertain the negligence charged, as that it required a finding of negligence in all the respects mentioned in the preceding instruction, to warrant a recovery, instead of in but one or more of them. Appellant seeks to sustain the instruction by the argument that there was but one act of negligence charged, and that was excessive speed. This is true; and, had the instruction merely required the plaintiff to establish that the car was being driven at an excessive rate of speed, and a causal connection between such excessive speed and the injury, it would not have been open to the objection made. But the petition alleged, as stated in the preceding instruction, excessive speed under different circumstances,--that is, just prior to the accident, in disregard of warnings of the other persons in the car, and upon loose gravel; and the instruction required that plaintiff, to be entitled to recover, must establish, not merely excessive speed, but excessive speed under all of these circumstances. The plaintiff was under no such burden.
It is clear that, if the car was being driven at an excessive speed just before it went into the ditch, and a causal connection between the rate of speed and the ultimate ditching of the car and injury to appellee appeared, actionable negligence would be shown although the speed had been reduced at the instant the car left the road, and although there was no loose gravel and no warnings from the passengers. So, too, if the car was driven at excessive speed upon loose gravel and thereby was caused to leave the road, with the result that appellee was injured, this would constitute negligence, without regard to the speed an instant before, or without regard to previous warnings. The instruction was erroneous, and prejudicial to plaintiff.
II. The court instructed that, if it was found that the defendant was driving at a rate of speed in excess of 30 miles per hour, the presumption would be that he was negligent in so doing. The statute in force at the time, Section 27 of Chapter 275, Acts of the Thirty-eighth General Assembly (Section 5029, Code of 1924), provided that no person should in any event drive a motor vehicle equipped with such tires and carrying such load as appellant's car, at a greater rate of speed than 30 miles per hour. This was a positive statutory prohibition of a speed greater than 30 miles per hour, and a violation was made a misdemeanor. Section 29, Chapter 275, supra (Section 5089, Code of 1924). A speed in excess of the rate permitted by statute was negligence per se, not merely prima-facie negligence. Ives v. Welden, 114 Iowa 476, 87 N.W. 408; Hubbard v. Bartholomew, 163 Iowa 58, 144 N.W. 13; Hough v. Illinois Cent. R. Co., 169 Iowa 224, 149 N.W. 885; Burk v. Creamery Pkg. Mfg. Co., 126 Iowa 730, 102 N.W. 793; Girl v. United States R. Adm., 194 Iowa 1382, 189 N.W. 834; Faatz v. Sullivan, 199 Iowa 875, 200 N.W. 321; Carlson v. Meusberger, 200 Iowa 65, 204 N.W. 432.
The recognized distinction between those violations of a statute that are negligence per se and those that are merely prima-facie negligence was pointed out in the Carlson case, supra. A violation of a statute prohibiting "in any event" a speed in excess of a certain rate comes clearly within the former. The distinction is in this case emphasized by the fact that the former statute made a speed in excess of that then fixed in the statute merely presumptive evidence of negligence. Fisher v. Ellston, 174 Iowa 364, 156 N.W. 422. The instruction in question announced a rule that had been abrogated by statute, and it was clearly erroneous.
III. The third instruction assailed by the motion for a new trial related to the subject of contributory negligence. The court instructed, in substance, that the plaintiff was required to exercise the same care as an ordinarily prudent person would exercise under like circumstances; and that, although she had a right, within reasonable limits, to rely upon the skill and judgment of the driver, she had no right to rely implicitly upon his care and prudence, and, if he was driving at a high and dangerous rate of speed and she knew and realized it, or as a reasonably prudent and careful person should have so known and realized, it was her duty to attempt to have him check the speed to a safe rate; and that, if it was found by a preponderance of the evidence that the car was being driven at a high and dangerous rate of speed, "and the plaintiff, knowing and appreciating that fact, or as a reasonably prudent and careful person should have known it, made no effort to have said speed diminished," and such failure contributed directly to the accident and her injury, she could not recover.
There was testimony that the other occupants of the car had, before the accident, read the speedometer aloud and commented on the speed, and that plaintiff had complained about the speed. The defendant testified that he heard neither comments nor complaint. In view of this testimony, the instruction was misleading, even though a correct statement of the law. Under the rule given in the instruction, that it was the duty of the plaintiff, under the circumstances stated therein, to have protested, it was clearly a question for the jury whether she did so, and whether what she did, if anything, was sufficient to relieve her of contributory negligence.
But it is urged that the instruction is erroneous in that it invaded the province of the jury, in saying that, if the plaintiff knew and appreciated that the car was being driven at a high and dangerous rate of speed, or in the exercise of ordinary care ought to have so known, it was her duty to have attempted to have the driver check the speed, and that, if she made no effort to have the speed reduced, she was guilty of contributory negligence. The precise point is that, it is said, the court could properly instruct that she was, in such circumstances, bound to exercise ordinary care, but not that she was bound to do a certain thing or take a particular precaution.
While all authorities agree that a guest riding in an automobile is bound to exercise ordinary care for his own safety, there is a marked lack of agreement as to what the exercise of ordinary care requires of him with respect to his duty when he knows, or in the exercise of due care ought to know, that the driver is proceeding negligently, either in the matter of speed or in the face of a danger arising from some other cause. Some courts hold that, if the guest knows, or in the exercise of due care ought to know, of the excessive speed or other negligence of the driver, it is his duty to protest to or warn the driver, and that, if he fails to do so, he acquiesces in the negligent act, and, as a matter of law, is guilty of contributory negligence. Among the cases so holding are the following: Sharp v. Sproat, 111 Kan 735 (208 P. 613); Grifenhan v. Chicago R. Co., 299 Ill. 590 (132 N.E. 790); City of Gary v. Geisel, 59 Ind.App. 565 (108 N.E. 876); Elling v. Blake-McFall Co., 85 Ore. 91 (166 P. 57); Howe v. Corey, 172 Wis. 537 (179 N.W. 791); Duffy v. Bishop Co., 99 Conn. 573 (122 A. 121); Beck v. Director General of Railroads, 268 Pa. 571 (112 A. 34); Nelson v. Johnstown Traction Co., 276 Pa. 178 (119 A. 918); Holden v. Missouri R. Co., 177 Mo. 456 (76 S.W. 973). See, also, Berry on Automobiles...
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