Hahn v. Strubel, 48013

• Decision Date: 04 March 1952
• Docket Number: No. 48013,48013
• Citation: 243 Iowa 438,52 N.W.2d 28
• Parties: HAHN v. STRUBEL.
• Court: Iowa Supreme Court

Page 28

52 N.W.2d 28

243 Iowa 438

HAHN v. STRUBEL.

No. 48013.

Supreme Court of Iowa.

March 4, 1952.

Charles J. Pickett, Waterloo, for appellant.

Reed & Beers, Waterloo, for appellee.

MANTZ, Justice.

On August 23, 1948, at about 11:45 p. m. plaintiff, Birginia Hahn was riding as a guest with defendant in his automobile in the city of Waterloo, Iowa. While they were proceeding in a westerly direction on West 11th St. in said city and had crossed the 11th Street bridge over the Cedar River, the car which defendant was driving struck a car parked along the street curb between said bridge and Commercial Street in said. As a result of said striking, the plaintiff suffered injuries which required hospitalization and medical treatment. Some of her injuries were of a permanent nature.

Plaintiff's claim is that the collision between defendant's car and the one struck was brought about by the reckless conduct of the defendant.

When all of the evidence had been received the defendant moved for a directed verdict on the ground the evidence was insufficient to warrant a verdict for plaintiff. Said motion was sustained and plaintiff has appealed.

I. The question presented to us in plaintiff's appeal is whether there is sufficient evidence of reckless operation for submission to the jury. The determination of this question calls for an examination of the statute governing in such cases and the evidence which under the rule is to be favorably construed in plaintiff's behalf.

Plaintiff's claim is based upon what is commonly called the 'Guest Statute'. Section 321.494, Code of 1950, I.C.A. This statute as it now stands was enacted in 1927. Prior to that time the operator of an automobile was liable to a guest for damages arising out of the negligent operation of the vehicle by said operator.

The legislature in the 42d General Assembly, by Chapter 119 enacted the present statute which provides that the owner of operator of an automobile should be liable to a guest for damages suffered by said guest by reason of the intoxication of or reckless operation of said automobile by such owner or operator.

This statute and its application has been before this court many times since its enactment. One of the early cases dealing with the present statute is that of Siesseger v. Puth, 1931, 213 Iowa 164, 239 N.W. 46. In that case, this court speaking through Grimm, J. made a full and elaborate analysis of the statute and its history calling attention to the statutes on the same subject prior thereto and then proceeding to a discussion of the meaning of the term 'reckless'. The definition of such term as therein given has been followed in numerous later decisions. The definition of the term as laid down in that case, though at times elaborated upon, has not been improved upon. We there said [213 Iowa 164, 239 N.W. 54] that the legislature in making the change 'intended the word 'reckless' to mean 'proceeding without heed of or concern for consequences.' To be 'reckless,' one must be more than 'negligent.' Recklessness may include 'willfulness' or 'wantonness,' but if the conduct is more than negligent, it amy be 'reckless' without being 'willful' or 'wanton". And we further went on to hold that 'to be reckless in contemplation of the statute * * * one must be more than negligent. Recklessness implies 'no care, coupled with disregard for consequences.''

The instant case involves a controversy, not over the definition but over its application to the facts shown. The burden was upon the plaintiff to show her claim of recklessness. Whether or not the defendant in the operation of the automobile at the time plaintiff was injured was reckless was clearly a fact question. That plaintiff was severely injured at the time of the accident is not disputed.

In various decisions from this court where a charge of injuries caused by the recklessness of a driver was claimed, consideration was given to the various elements and conditions which may be considered in determining whether such charge of recklessness was shown. We have said that no hard and fast rule can be laid down, but that in its last analysis it is a fact question. In many cases excessive speed was shown in the face of protests by passengers; also certain physical conditions such as road and weather conditions; dangers and hazards, apparent or probable. Seldom are two cases alike as to facts. We have further said that it is not easy to define 'reckless' in hard and fast terms, yet in the concrete it may be readily recognized. Skalla v. Daeges, 234 Iowa 1260, 15 N.W.2d 638; Mescher v. Brogan, 223 Iowa 573, 272 N.W. 645; Peter v. Thomas, 231 Iowa 985, 2 N.W.2d 643. In the Skalla case the defendant was driving a powerful and speedy car at an estimated speed of 80 to 90 miles per hour. It was on a 20 foot concrete highway. Approaching a steel girder bridge the car struck an abutment and one of the girders pierced the car injuring a guest; earlier the guest had protested to the driver that he was driving too fast. The road was straight and level. There was no meeting of cars. Defendant when asked how the accident happened stated that he was going down the road and his car got away from him; also that he was awake and his lights were on when he hit the bridge; on appeal defendant urged that the evidence did not justify the submission of the issue of recklessness to the jury. This court denied such claim and said that under the record there was the ultimate fact question and that the same was properly submitted to the jury. See also Maland v. Tesdall, 232 Iowa 959, 5 N.W.2d 327; Neyens v. Gehl, 235 Iowa 115, 15 N.W.2d 888.

In the case of Mescher v. Brogan, supra, the sole question presented was that of the recklessness of the driver of a car under the guest statute. Defendant claimed error in submitting the case to the jury. The court denied such plea and called attention to the record that the driver of the car was proceeding at a high rate of speed; that there were protests from the passengers; that the visibility was poor and other conditions existed. This court held that all such conditions when taken and considered together required a submission of the case to the jury, saying that such must be done if under the record different minds might reasonably reach different conclusions. On the question as to when it became the duty of the court to direct a verdict see Claussen v. Estate of Johnson, 224 Iowa 990, 278 N.W. 297.

In the late case of Schneider v. Parish, Iowa, 49 N.W.2d 535, on this issue of recklessness this court (Thompson, J.) held that under the guest statute the danger must have been known to a driver who acted in entire disregard of it or the danger must have been so obvious and apparent the driver must have used no care at all in failing to observe it. Peter v. Thomas, supra; White v. Center, 218 Iowa 1027, 254 N.W. 90. The writer of this opinion goes on to set forth the rules as laid down in Siesseger v. Puth, supra; also the language of this court in Hebert v. Allen, 241 Iowa 684, 41 N.W.2d 240, and states that the application of such rules will often be troublesome. The writer in a somewhat philosophical vein goes on to state: 'But the law is not an exact science, and it is the problem of application of established rules to the varying fact situations which arise which make it the difficult but fascinating study that it is.'

II. With these rules in mind we turn to the record.

Plaintiff, Virginia Hahn, aged 23, and defendant, Albert Strubel, aged 24, had been dating together a few times prior to August 23, 1948. Plaintiff lived in Waterloo and was working as a waitress. Defendant lived near Waterloo and frequently came to the city. He had a couple of sisters there. About 8 p. m. defendant called for plaintiff and about two hours later they arrived in defendant's Ford car at a dine and dance hall called the Forum, in Waterloo. They were in the tavern barroom downstairs where they visited and drank some beer. Later plaintiff with an uncle went upstairs to the dance floor and remained there about 45 minutes, defendant remaining downstairs. During the time plaintiff was gone defendant learned that plaintiff had been previously married and when she came down the two had some words about her stay upstairs and defendant displayed some temper, announcing that 'we are through' and offered plaintiff back her watch which she declined to take and then threw it down on the bar. Thereupon she asked defendant to take her home and he agreed. Before leaving he said that it was getting late, that he wanted to see some person at the Electric Park and would go that way going home.

Defendant's car was a 1937 model Ford and there was evidence that the lights on it were poor. It had no muffler on it and in driving it made considerable noise. While at the Forum the car had been in a parking lot adjacent. When defendant got his car plaintiff got in. When he went out of the parking lot the motor was roaring. He drove from the lot on to 11th St., one of the principal streets of Waterloo. He did not stop when entering it. Eleventh Street is partly industrial and partly residential. This street runs east and west and crosses the Cedar River on a bridge approximately three blocks long. He drove west. This street is approximately 35 to 40 feet wide. The bridge is narrower and is raised some where it meets the street--also there is a fall where it ends. The official speed limit on the bridge is 15 miles per hour and to its west and where the accident took place the speed limit was 25 miles per hour. The east end of the bridge was about a block from the Forum. The bridge was floored with plank which made it rather rough. As the bridge is narrower than the street on the right hand side going west there is a jog of a few feet where cars going in that direction must make a swerve to the left. As defendant drove his car upon the east end of the bridge he swerved sharply to the left and plai...