Fry v. Smith

• Decision Date: 06 March 1934
• Docket Number: No. 42353.,42353.
• Parties: FRY v. SMITH et al.
• Court: Iowa Supreme Court

217 Iowa 1295

253 N.W. 147

FRY

v.SMITH et al.

No. 42353.

Supreme Court of Iowa.

March 6, 1934.

Appeal from District Court, Union County; Homer A. Fuller, Judge.

Action at law for damages on account of injuries claimed to have been sustained by plaintiff, while riding as a passenger in an automobile with her husband. From a verdict and judgment in favor of the plaintiff, the defendants appealed.

Reversed.

ALBERT and EVANS, JJ., dissenting.

Marshall F. Camp, of Creston, and Putnam, Putnam, Langdon & Fillmore, of Des Moines, for appellants.

E. F. McEniry, of Creston, for appellee.

DONEGAN, Justice.

On July 4, 1932, Wilma Fry was riding westward in the front seat of an automobile driven by her husband on paved highway No. 34 in Adams county, Iowa, and, when at a point about ten miles west of the city of Corning, said automobile came into collision with an automobile being driven eastward on said highway, which was owned by Ralph Smith and was being driven by Cap Bolling. As a result of such collision, Wilma Fry received personal injuries for which she sued. At the close of plaintiff's evidence and again at the close of all the evidence, the defendants moved for a directed verdict in their favor. Both motions were overruled, and the case was submitted to a jury, which returned a verdict in favor of the plaintiff. A motion for new trial and exceptions to instructions were filed in due time and were overruled by the trial court and judgment entered on the verdict. From this judgment, and from the order overruling their motion for a new trial and all adverse rulings, the defendants appeal.

I. Appellants urge error on the part of the trial court in refusing to sustain the motion for a directed verdict on the ground that the evidence affirmatively showed that the plaintiff was guilty of contributory negligence. Appellants' claim is based upon the fact that at the time of the collision the plaintiff was sitting in the front seat of the automobile driven by her husband and voluntarily went to sleep and exercised no care whatever for her safety. In support of this contention, appellants cite several Iowa cases. Many of these cases are cited and discussed in Hutchinson v. Sioux City Service Company, 210 Iowa, 9, 230 N. W. 387, 390, also cited by appellants, wherein we said: “It is thus apparent that our holdings are that a guest in the front seat of a motor vehicle, with opportunity to see what is to be seen, equal to that of the driver, and where there are no diverting circumstances, cannot completely surrender himself to the care of the driver, and then successfully contend that he (the guest) was in the exercise of ordinary care. The record in this case reveals no care or caution whatever exercised by the plaintiff for her own safety and protection. She did not see and did not look.”

Appellants also cite and place much reliance upon the case of Oppenheim v. Barkin, 262 Mass. 281, 159 N. E. 628, 61 A. L. R. 1228. In that case the plaintiff was a guest riding in the rear seat of an automobile driven by defendant and was asleep at the time of the accident. The court said: “Assuming that there was evidence to support a finding of gross negligence by the defendant in driving his automobile across the highway from the right to the left side (Manning v. Simpson, 261 Mass. 494, 159 N. E. 440), there was no evidence that the plaintiff himself was exercising any care. He was asleep, and entrusted himself entirely to the care of the defendant, without using any precaution for his own safety. * * * A guest on the rear seat of an automobile cannot be expected to control its operation or interfere with its movement, but he must exercise some care.”

The above case is the only one cited by either party in which the fact that a guest or passenger in an automobile was sleeping at the time of the accident is held, as a matter of law, to be contributory negligence. We have made a very thorough search and have been able to find only four other cases in which the question of the negligence of a person who was asleep in an automobile at the time of an accident has been considered. In Bushnell v. Bushnell, 103 Conn. 583, 131 A. 432, 44 A. L. R. 785, a wife sued her husband for injuries sustained on account of his alleged negligence in driving an automobile in which she was a passenger. The wife, while riding in an automobile driven by her husband, had fallen asleep about the time the accident occurred, and the court on appeal held that the question of her contributory negligence was rightly submitted to a jury. In McDermott v. Sibert, 218 Ala. 670, 119 So. 681, a passenger in an automobile sued the driver for negligence. In that case the passenger was asleep at the time of the injury. It was held that a plea that he had fallen asleep would not relieve the passenger from the duty to exercise due care, if a prudent person would not have fallen asleep, and that the question of his contributory negligence was for the jury. In Parker v. Helfert, 140 Misc. 905, 252 N. Y. S. 35, a passenger knew that the driver of an automobile intended to coast down a hill. The passenger took no precautions, but went to sleep, and it was held that this constituted contributory negligence. In Schmidt v. Leuthener, 199 Wis. 567, 227 N. W. 17, 18, a passenger in the front seat of an automobile with the driver was asleep or had his eyes shut trying to sleep at the time the accident occurred, and it was claimed by the defendant that this constituted contributory negligence as a matter of law. The court referred to the case of Oppenheim v. Barkin, supra, and said: “This contention is supported by a Massachusetts case, which holds that a guest cannot completely surrender himself to the care of the driver; that he cannot abandon the exercise of his own faculties and trust entirely to the driver's care; that he must at least exercise some degree of care; and that his going to sleep disables him from so doing and necessarily constitutes negligence. Oppenheim v. Barkin, 262 Mass. 281, 159 N. E. 628 . We do not find it necessary to decide this point, for it is clear to us that under the circumstances the fact that Waschak was asleep had no causal connection with the collision. Had he been awake and seen the truck he would not have anticipated that the driver would not seasonably turn until too late to prevent the collision by action on his part. We are therefore of opinion that the judgment in favor of Waschak should be affirmed.”

[1][2] It is apparent from the above cases that the courts are not agreed in holding that the mere fact that a passenger in an automobile was asleep at the time of an accident is in and of itself contributory negligence, as a matter of law. That it might, as a matter of law, be contributory negligence for a passenger to go to sleep under certain circumstances may be admitted; but we are not prepared to accept the doctrine that the mere fact that a passenger in an automobile voluntarily goes to sleep must in all cases and under all circumstances be held to constitute contributory negligence. In any event, we think that, in order to defeat the recovery of a plaintiff who has been asleep at the time of an accident, on the ground that this constituted contributory negligence, there must be a causal connection between the fact that the plaintiff was asleep and the accident. In the case at bar we do not think there is any evidence of such a necessary causal connection between the fact that plaintiff was asleep and the accident to justify a court in holding her guilty of negligence as a matter of law.

II. Complaint is made that the court in its instruction No. 11 1/2 told the jury that “it is the law of this state that vehicles meeting each other on the public road shall give one-half of the same, turning to the right, and a failure in this regard shall make the delinquent liable for all damages resulting therefrom.”

It is contended that this is an incorrect statement of the law, in that it makes the failure to give one-half of the road by turning to the right negligence as a matter of law, and because it further makes the party thus found to be negligent liable for all damages resulting therefrom, regardless of whether such negligence was the proximate cause of plaintiff's injury or not. We think the portion of the instruction referred to, if standing alone, would be susceptible of the interpretation put upon it by the appellant. However, the instruction in which this statement is found contains further statements, and we think that the instruction, when read as a whole and in connection with other instructions given, would be understood by the jury as a correct statement of the law. As the case must be reversed on other grounds, the statement of which complaint is made can be corrected upon a retrial.

[3] III. In instruction No. 13, the court, in attempting to instruct the jury as to defendant's duty to have his automobile under control, said: “He is bound, however, to keep a constant lookout and use all his senses to avoid the danger of a collision with a pedestrian or vehicle on the highway that might reasonably be anticipated by an ordinarily cautious and prudent person.”

Appellants contend that the instruction thus given imposed upon the driver of the defendant's car a greater duty than is imposed by law, because the law only requires that a driver shall use ordinary care in keeping a lookout and avoiding danger of a collision, while the instruction given imposes an absolute duty upon the driver to keep a constant lookout and to use all his senses to avoid the danger of a collision. Appellees contend that the objection thus raised is not tenable because, in the same instruction, the court further said: “He (the driver) was bound to use that degree of care, caution and prudence that an ordinarily...