Harvey v. Clark

Citation6 N.W.2d 144,232 Iowa 729
Decision Date17 November 1942
Docket Number45970.
PartiesHARVEY v. CLARK (two cases).
CourtIowa Supreme Court

Roy A. Cook and Cherny & Cherny, all of Independence, for appellants.

O'Brien & Molloy, of Independence, for appellee.

GARFIELD, Justice.

On December 21, 1940, at 1:15 a. m., decedent, a boy of fifteen, was riding as a guest in defendant's automobile from Independence to Waterloo. At a railroad crossing in the town of Jesup the automobile collided with the second car behind the engine of a moving passenger train. Decedent and one Wilson, also riding in the car, were killed. Defendant was injured. These actions were brought under section 5037.10, Code 1939, claiming the collision was caused by the reckless operation of the automobile. In directing a verdict for defendant at the close of plaintiff's testimony, the court ruled that the evidence was insufficient to prove recklessness. This ruling presents the only question for us to consider.

The automobile approached the railroad crossing from the south on paved U. S. Highway 20. The train was traveling west. The engineer of the train testified that after the engine passed over the highway he looked to the south and saw an automobile coming. "The headlights were bobbing up and down." There was a dip in the paving about 240 feet south of the railroad track. "In a few seconds" the fireman told the engineer the auto had hit the train. The fireman testified that he noticed the auto as the engine got to the crossing. "His headlights were bobbing, bouncing up and down a bit." He looked back to see if the driver was going to stop and saw the collision.

The trainmen brought the train to a stop, backed it up and then examined the wreckage. The automobile was badly damaged. Defendant-appellee was found lying about 30 feet west of the pavement. The body of Wilson was found about 60 feet west of the paving "fairly close" to the railroad track. Decedent's body was 50 to 60 feet southwest of the crossing, a little closer to the paving than Wilson's body. Wilson apparently sustained greater injuries than decedent, although both were killed. "There wasn't much of Wilson's head attached to his body."

The automobile, according to one witness, was found between decedent's body and Wilson's. Another witness said the car was "a little bit" northwest of appellee. In any event, all the testimony shows that the auto and its three occupants were found within 30 to 60 feet west and southwest of the crossing. The auto struck the west truck of the second mail car. "There were marks along the full length of the car in places." There was blood all over the truck and shattered glass on it. What looked like brains were found on the east truck on the south side of the railroad car.

The town marshal testified that the train, as always, whistled all the way through Jesup. There was a wigwag signal in the shape of an inverted L to the south of the track and on the east side of the highway. From a picture in evidence we judge the upright post of the signal is approximately 15 feet high with a bell on top of the post. Extending horizontally to the west from the upper part of the post, underneath the bell, is an arm perhaps six feet long. Suspended from the west end of this arm is a disc perhaps 18 inches in diameter with a red light in the center. The marshal testified the signal was working "but it was so foggy you really couldn't see it very far." The doctor who was called to the accident also testified it was very foggy. Other testimony was that while it was foggy in spots there was fair visibility at the crossing when the collision occurred.

There is testimony that after the collision appellee said, "We didn't know we were going to hit the train until we hit it." In this same conversation, appellee said that while he knew there was a train through Jesup, he wasn't driving. Decedent's mother by adoption testified that she accused appellee of driving too fast but that appellee denied the charge and asserted he was not exceeding 20 miles per hour.

There is some dispute as to whether appellee or Wilson was driving. Appellee testified as appellant's witness that Wilson was driving and that he was sitting in the front seat with Wilson. Appellee also told decedent's mother by adoption according to the witness Trimble, that Wilson was driving. Appellant argues that appellee was driving because the adopting mother testified that appellee told her (as above stated) in the same talk to which Trimble testified, "I wasn't driving over 20 miles an hour through Jesup," and also because appellant was injured less severely than Wilson, who was killed.

Since appellee concedes that Wilson was driving with his consent it is not of vital importance which of the two was driving. Appellee would be legally liable for decedent's death if caused by the reckless operation of appellee's automobile by one driving with the owner's consent. Code, sections 5037.09 and 5037.10. White v. Center 218 Iowa 1027, 1037, 254 N.W. 90; Annotation, 131 A.L.R. 891, 892. See, also, Allbaugh v. Ashby, 226 Iowa 574, 284 N.W. 816.

We have summarized substantially all the evidence on the question of recklessness. Appellant argues that the testimony of appellee need not be accepted as a verity since he is interested in defeating recovery;...

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1 cases
  • Harvey v. Clark, 45970.
    • United States
    • United States State Supreme Court of Iowa
    • November 17, 1942
    ...232 Iowa 7296 N.W.2d 144HARVEYv.CLARK (two cases).No. 45970.Supreme Court of Iowa.Nov. 17, Appeal from District Court, Buchanan County; R. W. Hasner, Judge. The administrator and father by adoption brought separate law actions, which were consolidated for trial, to recover under the guest s......

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