Crabb v. Shanks
| Decision Date | 14 March 1939 |
| Docket Number | 44578. |
| Citation | 284 N.W. 446,226 Iowa 589 |
| Parties | CRABB v. SHANKS. |
| Court | Iowa Supreme Court |
Appeal from District Court, Cerro Gordo County; M. H. Kepler, Judge.
Law action in which plaintiff sought damages because of alleged reckless operation by defendant of a motor vehicle in which plaintiff was riding as defendant's guest. From a judgment for plaintiff defendant appealed.
Reversed.
Blythe, Markley, Rule, Dibble & Cerney, of Mason City, and McNutt, Kuhns & Brown, of Ottumwa, for appellant.
Breese & Cornwell, of Mason City, for appellee.
The accident, in which plaintiff suffered the injuries on account of which she sought damages in this action, occurred in the evening of September 20, 1936, at about 8 o'clock. Plaintiff and a Mrs. Stearns and the latter's two sons were at the time riding as guests of defendant in an automobile that he was driving. In the early afternoon of the same day this group of neighborhood friends had departed from Mason City, where they resided, upon a pleasure outing, as they had done on frequent occasions. The itinerary included Albert Lea, Minnesota and Forest City. Returning toward Mason City they passed through Garner. There it was growing dark and headlights were turned on. From Garner they proceeded east on Primary Highway #18 a few miles to a place where the course of the highway described a quarter circle. A vehicle proceeding as was this one, after traveling over this curved portion, would be proceeding north upon the same primary highway. As defendant's car had just completed the traversing of this curve, and was headed in a northerly direction, it suddenly went to the east and overturned on its right side in a ditch that was immediately at the east side of the highway. Plaintiff's physical injuries resulted. Upon a trial on the merits there was a verdict for the plaintiff Florence L. Ginder. From the judgment rendered thereon against defendant he perfected an appeal. Subsequently the administrator of Florence L. Ginder then deceased was substituted as plaintiff. But for brevity our discussion will be phrased as though the decedent had continued to be the plaintiff-appellee.
At the time of this occurrence section 5026-B1, Code 1935, provided that " 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." There was no suggestion of use of intoxicating liquor by defendant. What plaintiff claimed was the right to recover for damages because there was an alleged reckless operation of the automobile by defendant at the time of the accident, causing her injuries.
Defendant made and the court overruled a motion for a directed verdict against plaintiff, one ground being that the evidence failed to show reckless operation of the car. The question is presented whether on account of this ground the court should have sustained the motion.
That which plaintiff in her petition pleaded as constituting reckless operation of the car by defendant was thus stated " that the defendant heedlessly and recklessly attempted to turn the sharp corner at a rate of speed of approximately forty (40) miles per hour; that the defendant failed to slow down and to have his car under control in attempting to turn same sharply to the left to follow the pavement; that as a result thereof, the momentum of said car carried it off the pavement and across the shoulder and into the ditch and against an embankment on the right hand side of the road." The " sharp corner" mentioned in the quotation is a reference to the curve of which we have spoken. In another portion of the petition plaintiff describes the curve as " a sharp turn in the road."
Facts that are undisputed are these; defendant owned the automobile he was driving, and it was practically new; the headlights were burning and " were good" ; there had been no rain and the highway was dry; a hard dirt shoulder, on which there was gravel, extended out from the sides of the curved portion of the paving; in this shoulder, at about the point where defendant's car suddenly went to the east, there was a hole or rut running parallel with the paving and located between one and two feet from the edge of the paving its length being two feet and its depth about six inches; features of the accident were these, defendant's car came to rest on its right side, the lights still burning and the motor running; soon afterwards when it was righted so as to stand on its wheels it was discovered that a front fender " was bent up a little", the tire on the right front wheel was blown out and that wheel was broken. Two hundred feet west of the commencement of the curve was an official " U.S. 18" sign with a letter " L" below; 400 feet west of the beginning of the curve was a large " Slow" sign, and 200 feet still further west was an arrow sign and a no passing in 700 feet sign; defendant was familiar with this highway and knew he was approaching this curve; his age was 64 years; he had been accustomed to driving automobiles since 1908.
At a comparatively short distance north of the place of the accident another automobile was standing partly on the paving in a disabled condition. The five persons who had been riding in that car, appreciating a possibility of being struck by defendant's car, were carefully observing its approach prior to and as it rounded the curve. They testified that defendant approached the curve at a speed of about 35 miles per hour and slowed down on the curve to 25 or 30 miles per hour. Mrs. Stearns testified defendant slowed down to about 30 miles per hour as he approached the curve and one of her sons fixed the speed on the curve at between 25 and 30 miles per hour. (This witness however, was only 12 years old.) Defendant's testimony was that he saw the slow sign and while making the curve was traveling not faster than 25 miles per hour. But there was the testimony of plaintiff, a lady then 62 years of age, riding in the back seat without claiming to have observed the speedometer, that between Garner and the curve defendant was driving at from...
To continue reading
Request your trial