Johnson v. McVicker

• Citation: 216 Iowa 654,247 N.W. 488
• Decision Date: 07 March 1933
• Docket Number: No. 41698.,41698.
• Parties: JOHNSON v. MCVICKER.
• Court: United States State Supreme Court of Iowa

216 Iowa 654

247 N.W. 488

JOHNSON

v.MCVICKER.

No. 41698.

Supreme Court of Iowa.

March 7, 1933.

Appeal from District Court, Boone County; H. E. Fry, Judge.

Action for personal injuries arising from an automobile accident which occurred while the plaintiff was riding with the defendant in the defendant's car. The case went to the jury on instructions, and judgment was rendered on the verdict, in favor of the plaintiff, for $12,000. Defendant appeals.

Affirmed.Mahoney & Mackey, of Boone, and Putnam, Putnam, Langdon & Fillmore, of Des Moines, for appellant.

Baker, Doran & Boone, of Boone, for appellee.

ALBERT, Justice.

The plaintiff Walter W. Johnson, Harold White, and the defendant started on a hunting excursion, in the defendant's automobile, from the city of Boone on the morning of November 14, 1930. Defendant was driving the car and the three boys were sitting in the front seat. About 5:45 in the morning they were traveling northward on Highway No. 60, which runs north and south, and when about six miles south of Webster City, in attempting to pass two other automobiles going in the same direction, defendant's car ran off the grade into the ditch at the side of the road, and after traveling therein for some distance, struck the grade of an intersecting highway, rolled over twice, resulting in the injuries of which the plaintiff complains.

[1] A more detailed statement of the facts will be found in the case of White v. McVicker, reported in (Iowa) 246 N. W. 385, which was an action growing out of this same accident. Under practically the same set of facts set out in that case, we held that whether or not the defendant was guilty of recklessness was a question of fact for the jury, and we so hold here.

The question of joint adventure or common purpose is raised in this case, and practically the same argument is made here as was made in the White Case, supra. In that case we held that the doctrine of joint adventure had no application, under the fact situation, as the evidence was insufficient to take that question to the jury. Although the defendant in the instant case pleaded the defense of joint adventure or common enterprise, the evidence was insufficient to make a jury question on that proposition.

[2] In this case, as in that, the doctrine of assumption of risk was sought to be applied, but in the present case there was no such issue tendered by the pleadings as in the White Case. This case falls within the rule laid down in Taylor v. Chicago, R. I. & P. R. Co., 186 Iowa, 506, 170 N. W. 388, where we held that to be available, assumption of risk must be pleaded and proven if relied upon. The assignment of error because of the failure of the court to submit this question is not well taken.

One instruction given in this case with reference to the definition of “recklessness” is a practical duplication of one given in the White Case, and while we held in that case that it was erroneous, we held it was without prejudice. The same is true with reference to the attack on that instruction in the present case.

[3] Complaint is lodged against the instruction given by the court on proximate cause. This instruction reads as follows:

“As you have heretofore been told, it is incumbent upon the plaintiff to show, as one of the elements of his case, that the reckless operation of his car, by the defendant, if there was such, was the proximate cause of the injuries and damage of which the plaintiff complains. By ‘proximate cause’ is meant the direct, efficient, producing cause. It does not necessarily mean that the defendant's alleged recklessness, if there was such, must be the sole and only cause of the plaintiff's injuries, for recklessness may be the proximate cause of an injury and still not be the sole and only cause of such injury.

To be the proximate cause, however, it must appear that had it not been for the recklessness of the defendant, in the respect charged, if there was such, the injuries and damages to the plaintiff would not have occurred.”

The only point made against this instruction is that under section 5026-b1, Code 1927, it is urged that the court erred in its instruction where it states that “recklessness” may be the proximate cause and still not be the sole and only cause of the injury. In other words, the appellant insists that under this statute, recklessness must be the sole and only cause of the injury.

[4] We have long since announced the rule in this court that the mere fact that some other cause operated with the negligence of the defendant to produce the injury complained of does not relieve the defendant from liability. See Gould v. Schermer, 101 Iowa, 582, 70 N. W. 697;Pratt v. Chicago, R. I. & P. Ry. Co., 107 Iowa, 287, 77 N. W. 1064;Harvey v. City of Clarinda, 111 Iowa, 528, 82 N. W. 994;Aga v. Harbach, 140 Iowa, 606, 117 N. W. 669;Steburg v. Vincent Clay Products Co., 173 Iowa, 248, 155 N. W. 337.

The point urged is that when the defendant was attempting to pass the Sandelius car, Sandelius turned his car to the left, thus forcing the defendant's car into the ditch, and it is by reason of this contention that the plaintiff makes the assault upon this instruction.

In Wheeler v. City of Fort Dodge, 131 Iowa, 566, 108 N. W. 1057, 9 L. R. A. (N. S.) 146, the substance of the holding was that even though the acts of a third person concurred in producing the injury complained of, with the acts of the defendant, such conduct on the part of the third person does not relieve the defendant from liability for his own wrongful act. See, also, Kitteringham v. Sioux City & Pacific Ry. Co., 62 Iowa, 285, 17 N. W....