Crowell v. Demo, 45691

• Decision Date: 09 December 1941
• Docket Number: No. 45691,45691
• Citation: 1 N.W.2d 93,231 Iowa 228
• Parties: CROWELL v. DEMO
• Court: Iowa Supreme Court

231 Iowa 228

1 N.W.2d 93

CROWELL

v.DEMO

No. 45691

Supreme Court of Iowa

Dec. 9, 1941

Appeal from District Court, Floyd County; M. H. Kepler, Judge.

Action at law against the driver of an automobile for damages for personal injuries received by a guest passenger resulting from the alleged reckless operation of the car. The opinion states the facts. From judgment for plaintiff, defendant appeals.

Affirmed.

Hallagan, Fountain, Steward & Cless, of Des Moines, and Larson & Carr, of Charles City, for appellant.

R. W. Zastrow and W. G. Henke, both of Charles City, for appellee.

OLIVER, Justice.

On the night of September 19, 1935, a Ford roadster, owned and operated by defendant and in which plaintiff was riding as a guest, struck a large tree, which apparently had fallen in a windstorm of the previous night and lay across the highway. The trunk of the tree was 6 feet in circumference and was held up by broken limbs in a horizontal position about 2 feet above the highway. Alleging the collision and his resulting injuries were caused by defendant's reckless operation of the car, plaintiff brought this action at law for damages. Upon trial defendant's motion for a directed verdict was overruled. The jury returned a verdict in favor of plaintiff, and judgment was entered thereon. Defendant's appeal is directed solely to the sufficiency of the evidence of his reckless operation of the car, as defined in the guest statute (now Section 5037.10, Code of 1939), to justify the submission of the case to the jury. In considering this contention the record should be viewed in the light most favorable to appellee. However, it is without material conflict.

The night was cloudy. The headlights of the car were good. The highway was straight and comparatively level. It was surfaced with gravel, with a beaten track in which the car was traveling. At the sides of this the gravel was loose. Defendant referred to the width of the road as “room enough for two cars, it isn't any too wide.” “I knew it was a narrow road.”

About one-fourth mile from the scene of the accident the car passed over a railroad crossing. It was then traveling at about 75 miles per hour. It swerved sideways for a second or two. Appellee told appellant to be careful. Appellant made no reply but seemed to increase the speed to between 75 and 80 miles per hour. Shortly thereafter appellee saw the obstruction and when it was about 300 feet distant told appellant there was something in the road ahead. Appellant paid no attention to the warning and did not immediately remove his foot from the accelerator pedal. The brakes were first applied when the tree was about 70 feet ahead. From that point the wheels were sliding but the momentum of the car was so great that it crashed into and partly under the trunk of the tree.

Appellee, who was dazed by the collision, testified the car was traveling “close to sixty-five miles an hour” when it struck the tree. Appellant, who was also injured in the crash, was unable to estimate the speed at the time of collision, but testified the car had slowed down considerably. His excuse for not heeding appellee's warning was, in part, “I probably did not take his word for it, I could see.” “I thought it was a wagon or something.” “I thought I could go by it.” “I thought I could stop.” He knew the storm of the night before had blown down some trees and branches but testified he didn't anticipate any obstruction in the road.

The briefs cite and quote from a number of cases decided under the guest statute, dealing with varying factual situations...