Fraser v. Brannigan

• Decision Date: 18 June 1940
• Docket Number: 45243.
• Citation: 293 N.W. 50,228 Iowa 572
• Parties: FRASER v. BRANNIGAN et al.
• Court: Iowa Supreme Court

293 N.W. 50

228 Iowa 572

FRASER v. BRANNIGAN et al.

No. 45243.

Supreme Court of Iowa.

June 18, 1940

Appeal from District Court, Pocahontas County; Fred M. Hudson Judge.

Suit for wrongful death against defendant and owner of automobile based on recklessness of driver. The defense was the denial of recklessness and the plea of emergency. Case was submitted to a jury which returned a verdict for the plaintiff. Defendant appealed. Opinion states the facts.

Affirmed.

Shaw & Shaw, of Pocahontas, for appellants.

Kelleher & Donohoe, of Pocahontas, for appellee.

MITCHELL, Justice.

J. M Fraser, as administrator of his son's estate, commenced this action against Walter and Ronald Brannigan to recover damages for injuries causing the death of James Fraser, while he was riding as a guest in an automobile. The defendants pleaded a denial of recklessness and a plea of emergency. Case was submitted to a jury which returned a verdict for the plaintiff in the amount of $2,750. Defendant has appealed.

Ronald Brannigan and James Fraser were friends and classmates in the senior class of the high school at Pocahontas, Iowa. On the morning of December 11, 1938, James accepted the invitation of Ronald to accompany the Brannigan family from the church services which they attended in Pocahontas, Iowa, to the Brannigan farm home, nine miles from Pocahontas. When they reached the farm, Ronald changed his clothes and with the consent of his father took the Brannigan 1936 Model Chevrolet car. Ronald was driving.

The car was being driven in a southerly direction on a north and south road over a dirt highway which was not traveled very much but over which Ronald traveled often. On this road (besides two other bridges) was a replanked wooden bridge elevated above the earth roadway. It was about thirty years old with earth approaches. The bridge spanned a drainage ditch. The surface of the bridge was somewhat uneven and the high point of the bridge is at a place 40 feet south of the north end and 22 feet north of the south end of the bridge. The drop from this point of the bridge to a point 50 feet south of the south end is exactly 4 feet, equivalent to a 5.7 per cent grade which is not evenly distributed. But 2 1/2 inches of the decline is on the bridge itself. The dirt road or approach immediately south of the bridge drops 3.8 feet in 50 feet, making a grade of 7.6 per cent. And the first 25 feet immediately south of the bridge the grade was an 8.36 per cent grade or a drop of 2.9 feet in 25 feet.

In order to show the condition of the road and bridge where the accident happened, there is inserted here Exhibit J, which is a photograph from a point 80 feet south of the south end of the bridge. It shows that this road was a narrow winding road, that the road approaching the bridge from the south was at a lower elevation than the bridge by contrast with the guard rails of the bridge.

(Image Omitted)

Ronald Brannigan was familiar with this road, having driven it many times, and it was only about a mile from his home. The driver testified that as the car passed off the bridge and the wheels contacted the earth approach (but 12 feet wide from ditch to ditch at that point) that the car stayed on the road for some distance, then headed southeast toward the east ditch. There is little controversy as to the course the Brannigan car traveled after it left the south end of the bridge. The only dispute covers the first 15 to 20 feet. It is appellee's theory that the car leaving the plank bridge did not contact the road, until it had reached a spot 15 to 18 feet south of the bridge. There is evidence to sustain this, in that the tracks that the car left could only be traced to the spot 15 feet south of the bridge, where there had been cut in the dirt road holes, which appeared as if they were made by the spinning wheels of an auto.

From a point 15 to 18 feet south of the bridge, the Brannigan auto traveled towards the ditch on the east side of the road. The wheel tracks showed that the car traveled on the east edge of the fill to a point 150 feet south of the bridge, before all four wheels were traveling in the ditch. For 150 feet the right wheels were on the edge of the fill, the left on the sloping bank. The car traveled due south in the ditch for some distance. About 200 feet south of the bridge the car hit a tree stump, breaking off part of it. About 245 feet south of the bridge there was a gouge or cut in the shoulder of the grade and at this point the bumper broke off. The car cut across the ditch, through a fence and crashed into a cottonwood tree, upsetting.

At the close of the evidence the appellant made a motion for a directed verdict; the overruling of this is the main grounds urged for the reversal of the case.

We quote from appellants' brief: " The error of the court in overruling defendants' motion for directed verdict and for new trial consists and lies in this: That in predicating his action upon the Guest Statute, the plaintiff was required to plead and prove recklessness of the defendant Ronald Brannigan. The evidence introduced at the trial by the plaintiff both wholly failed to show any recklessness of Ronald Brannigan and affirmatively proved that said Ronald Brannigan was not reckless."

The standard by which reckless conduct of an automobile driver is determined is well settled in the decisions of the court. Attention is called to the definitions of recklessness as given in a few of the many decisions which define reckless conduct.

In Wright v. Mahaffa, 222 Iowa 872, 876, 270 N.W. 402, 404, citing many of the earlier decisions, the court said: " The term ‘ recklessness,’ as announced in the foregoing cases, can be said to be construed as meaning something more than negligence or want of reasonable care; that it means proceeding without heed of or concern for consequences; that it may include willfulness or wantonness, but if the conduct is more than negligent, it may be reckless without being willful or wanton; recklessness implies no care, coupled with disregard for consequences, and in the operation of an automobile signifies the driving of a car in a heedless disregard for consequences. The acts must be such as to manifest a heedless disregard for, or indifference to, the rights of others; something that indicates an indifference to consequences; and in the operation of an automobile signifies the driving of the car in heedless disregard for consequences."

In Mescher v. Brogan, 223 Iowa 573, 579, 272 N.W. 645, 649 this court, speaking through Chief Justice Hamilton, said: " They argue that: ‘ Recklessness is a state of mind that involves moral...