Fritz v. Wohler, 48961

CourtUnited States State Supreme Court of Iowa
Writing for the CourtPETERSON; All Justice concur except BLISS
Citation247 Iowa 1039,78 N.W.2d 27
PartiesJoe FRITZ, Appellant, v. Gerald WOHLER, Appellee.
Docket NumberNo. 48961,48961
Decision Date26 July 1956

Page 27

78 N.W.2d 27
247 Iowa 1039
Joe FRITZ, Appellant,
Gerald WOHLER, Appellee.
No. 48961.
Supreme Court of Iowa.
July 26, 1956.

Mason & Stone, Mason City, for appellant.

Westfall, Laird & Burington, Mason City, for appellee.

PETERSON, Justice.

On April 26, 1950, at about 12:30 P. M., defendant left his home north of Mason City in his practically new Mercury automobile to drive to Iowa Falls. Plaintiff was a guest. They traveled south on U. S. Highway 65, which is a straight paved highway from Mason City to Hampton. The only testimony in the case is the evidence of plaintiff and defendant. Plaintiff testified they drove 70 to 80 miles per hour. Defendant testified they traveled 70 miles per hour. The sunshine in the middle of the day had caused some thawing and plaintiff testified water seeped out from cracks in the road and there was some wet paving. Defendant testified the paving was

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dry. At one point in the roadway there was a truck ahead of them, which was flashing its rear lights. Plaintiff called defendant's attention to this, and suggested he better slow down. Defendant stated he noticed the flashing and drove around the truck. This was the only time and place plaintiff raised any question about the speed in the 25 miles of travel before the accident. About three miles before reaching Hampton they approached two or three hills. They drove over one hill, and immediately after reaching the crest of the next hill defendant's right wheels ran over the slanting curb and onto the shoulder. The thawing had caused the shoulder to become wet and somewhat slippery and although defendant immediately put on the brakes they would not hold. He tried to bring the car back off the shoulder, but was unable to do so. As he reached the bottom of the hill, a distance of about 300 feet, he was still going 40 miles per hour. The car ran into a ravine about 12 feet deep and both parties received personal injuries. At the close of all testimony defendant's attorneys filed motion for directed verdict, which was sustained by the trial court. Plaintiff appealed.

[247 Iowa 1041] I. We are again confronted with interpretation of Sec. 321.494 of the Code, I.C.A., known as guest statute, as applied to facts involved herein. Since 1927, when the guest statute was adopted by the legislature, this court has decided more than 40 reckless driving cases. A review of all cases is not necessary. The early case was Siesseger v. Puth, 1931, 213 Iowa 164, 239 N.W. 46. A few recent cases are Nehring v. Smith, 1952, 243 Iowa 225, 47 N.W.2d 831; Christensen v. Sheldon, 1954, 245 Iowa 674, 63 N.W.2d 892; Whiting v. Stephas, Iowa 1956, 74 N.W.2d 228; Nesci v. Willey, Iowa 1956, 75 N.W.2d 257; Goodman v. Gonse, Iowa 1956, 76 N.W.2d 873.

In the cases considered, certain principles have been enunciated as to the question of submitting the case to the jury. The necessity for this arises because oftentimes it is hard to distinguish between negligence and recklessness. The guest statute was adopted by the legislature for the purpose of eliminating negligence in guest cases. An exception was provided in case of recklessness. It became necessary for the court to define recklessness. We believe it is advisable to incorporate in this decision the three definitive principles as to recklessness which have been approved. There is one which appears in nearly all cases where this court has held that the evidence did not justify submission to the jury. That is the condition which was first stated in Siesseger v. Puth, supra [213 Iowa 164, 239 N.W. 54], which, in substance, is "no care, coupled with disregard for consequences". The second general principles is there must be evidence that defendant had actual knowledge of an existing danger, or there was a danger so obvious that he should be cognizant of it, and proceeded without any heed of or concern for the consequences. Peter v. Thomas, 231 Iowa 985, 988, 2 N.W.2d 643, 645; Russell v. Turner, D.C., 56 F.Supp. 455; Schneider v. Parish, 242 Iowa 1147, 49 N.W.2d 535. The third principle is that the consequences of the actions of the driver are such that the occurrence of the catastrophe is a probability rather than a possibility. Fraser v. Brannigan, 228 Iowa 572, 293 N.W. 50; Mescher v. Brogan, 223 Iowa 573, 272 N.W. 645; White v. Center, 218 Iowa 1027, 254 N.W. 90; Russell v. Turner, supra.

II. In considering the cases of dismissal by the court [247 Iowa 1042] we have often held the evidence must be considered in the light most favorable to plaintiff. Hahn v. Strubel, 243 Iowa 438, 52 N.W.2d 28, Baker v. Langan, 165 Iowa 346, 145 N.W. 513, 518; Odegard v. Gregerson, 234 Iowa 325, 12 N.W.2d 559; Degelau v. Wight, 114 Iowa 52, 86 N.W. 36; Thompson v. Cudahy Packing Co., 171 Iowa 579, 151 N.W. 470, 471; Comfort v. Continental Casualty Co., 239 Iowa 1206, 1208, 34 N.W.2d 588, 589. However, plaintiff must carry the burden of

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proof. Hebert v. Allen, 241 Iowa 684, 41 N.W.2d 240.

III. We have generally held that speed alone cannot be considered reckless driving. Scott v. Hansen, 228 Iowa 37, 289 N.W. 710; McDonald v. Dodge, 231 Iowa 325, 1 N.W.2d 280; Mayer v. Sheetz, 223 Iowa 582, 273 N.W. 138; Brown v. Martin, 216 Iowa 1272, 248 N.W. 368. In Russell v. Turner, supra [56 F.Supp. 460], Judge Graven carefully analyzed all our cases on reckless driving, and said: 'A high rate of speed alone does not make a case for the jury under the guest statute; there must be other material facts and circumstances combined with speed before there is an issue for the jury on the question of recklessness. Mayer v. Sheetz, 1937, 223 Iowa 582, 273 N.W. 138. In the cases of McDonald v. Dodge, 1941, 231 Iowa 325, 1 N.W.2d 280, and Scott v. Hansen, 1940, 228 Iowa 37, 289 N.W. 710, speeds of 80 miles on hour were held insufficient to make a case of recklessness for the jury. While it would seem that there would be some rate of speed which in itself alone would show recklessness, yet if there is, it is some speed beyond 80 miles an hour.'

We have relaxed this rule somewhat in Anderson v. Elliott, 244 Iowa 670, 57 N.W.2d 792, and in Wright v. Mahaffa, 222 Iowa 872, 270 N.W. 402, 405, where we said: 'It is contended that speed alone cannot constitute recklessness. While this may be true, it can hardly be said that speed under any and all circumstances cannot become recklessness.' In Skalla v. Daeges, 234 Iowa 1260, 15 N.W.2d 638, defendant was driving 90 to 100 miles per hour. Under the instructions of the trial court, and our approval thereof, the element of such excessive speed...

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  • Berge v. Harris, 53562
    • United States
    • United States State Supreme Court of Iowa
    • September 16, 1969
    ...... See Horst v. Holtzen, 249 Iowa 958, 962, 90 N.W.2d 41, and Fritz v. Wohler, 247 Iowa 1039, 1041, 78 N.W.2d 27. .         Dram shop acts, however, do not provide a defense to common law actions for ......
  • Hartman v. Kruse, 49470
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    ...... * * *' Fritz v. Wohler, 247 Iowa 1039, 78 N.W.2d 27, 28, and cases cited. .         II. As heretofore shown the defendant driver failed to stop at the ......
  • Winter v. Moore, 50890
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    • United States State Supreme Court of Iowa
    • April 9, 1963
    ...... See also Nesci v. Willey, 247 Iowa 621, 624, 75 N.W.2d 257, 259; Fritz v. Wohler, 247 Iowa 1039, 1041, 78 N.W.2d 27, 28, and citations.         We have also pointed out several times that generally, to make a ......
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    • United States State Supreme Court of Iowa
    • February 8, 1966
    ...... 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. ......
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