Hall v. Wilkerson

• Decision Date: 13 May 1935
• Docket Number: No. 18331.,18331.
• Parties: HALL v. WILKERSON.
• Court: Missouri Court of Appeals

84 S.W.2d 1063

HALL v. WILKERSON.

No. 18331.

Kansas City Court of Appeals. Missouri.

May 13, 1935.

Rehearing Denied July 15, 1935.

Appeal from Circuit Court, Jackson County; Marion D. Waltner, Judge.

"Not to be published in State Reports."

Action by Elsie Hall against Jessie W. Wilkerson. From a judgment for plaintiff, defendant appeals.

Affirmed.

Mosman, Rogers, Bell & Buzard, of Kansas City, for appellant.

A. B. Couch and Hume & Raymond, all of Kansas City, for respondent.

CAMPBELL, Commissioner.

The plaintiff, on February 13, 1933, sustained personal injuries while riding as a guest in an automobile operated by the defendant when said automobile collided with a truck operated by another. She brought this action to recover for her injuries; obtained a judgment, from which the defendant has appealed.

The defendant says the facts are not in dispute; that the only "question for decision is whether or not the facts create a jury question."

The evidence shows that on the day preceding the accident plaintiff and her brother, the defendant herein, arranged to meet in Happy Hollow, Mo., and go from there in an automobile owned by the defendant to visit their brother-in-law who was seriously ill in Henderson, Iowa. Plaintiff and defendant met at the appointed place. Plaintiff entered the defendant's automobile and they proceeded northward on their way, the defendant driving. The day was cold, rain fell, froze, and the pavement was covered with sleet. That part of the windshield of the automobile directly in front of the defendant was equipped with a windshield wiper and heater and was free of sleet. The part of the windshield which was in front of plaintiff was covered with sleet which completely obstructed her vision. The automobile was driven into the state of Iowa and from there to the place of accident upon U. S. Highway No. 71, an 18-foot concrete slab, along the center of which extended two lines dividing the traffic lanes. The accident occurred upon a curve in said highway about 5 miles south of the city of Clarinda, Iowa.

The plaintiff testified that she observed the speedometer of the automobile several times and that the automobile was going 35 to 40 miles an hour. Other witnesses in giving their testimony estimated the speed of the automobile at the place of collision to be from 30 to 45 miles an hour.

There was evidence tending to show that at the time defendant drove upon the curve he was astride of the lines on the pavement, was meeting a truck, and that he traveled along the center of the highway until he was within 75 feet of the truck. Thereupon the defendant endeavored to turn his automobile so that it would go to the right of the center of the pavement. When he turned the automobile, it skidded into the truck and caused plaintiff to be severely injured.

The contention of the defendant that plaintiff did not make a case for the jury is based upon the following grounds: (1) That there was no evidence tending to show that the defendant was guilty of recklessness in the operation of his automobile; (2) that plaintiff in her testimony made judicial admissions which destroyed her case; and (3) that plaintiff assumed the risk. The determination of the action is governed by the law of Iowa. Section 5026-b1 of the Code of Iowa, 1931, by its terms when applied to the facts in the case at bar provides that plaintiff was not entitled to recover unless her injuries were caused by recklessness of the defendant in operating his automobile.

The Supreme Court of Iowa has said: "The true rule seems to be, that where the evidence is not in dispute, if from such evidence all minds could not reasonably agree or whether recklessness has been established or not, then that question should be submitted to the jury. In most of the cases relied on by defendant as supporting the rule contended for, it was found by the court, as a matter of law, that there was not sufficient evidence offered to make out a prima facie case. Under such condition it would naturally be the court's duty to direct a verdict. But if under the proven or admitted facts different minds might reasonably reach different conclusions, the question then is one of fact for the determination of the jury." Siesseger v. Puth, 216 Iowa, 916, 248 N. W. 352, 356.

The term "reckless" has been defined by the Supreme Court of Iowa to mean "proceeding without heed of, or concern, for consequences"; that recklessness may include willfullness or wantonness; that if conduct is more than negligent, it may be reckless although not willful nor wanton. Siesseger v. Puth, 213 Iowa, 164, 239 N. W. 46; Jennings v. Biurvall, 122 Neb. 551, 240 N. W. 757; Neessen v. Armstrong, 213 Iowa, 378, 239 N. W. 56, 59. In the Neessen Case, supra, the court said: "In order for conduct to be reckless within the meaning of the law, it must be such as to manifest a heedless disregard for or indifference to the rights of others."

Each of the many Iowa cases cited in the briefs was decided on its own facts and in none of them were the facts similar to the facts in the instant case. In the instant case the defendant going at a speed of 30 to 45 miles per hour drove his automobile astride the center lines of a sleet-covered highway, maintained that position until he entered a curve and until he was within 75 feet of a truck which he was meeting. Defendant, though he knew of the existing conditions, made no effort to occupy the lawful side of the highway until he was dangerously near the approaching truck. Such conduct...