Kauzlarich v. Fitzwater

• Decision Date: 10 December 1963
• Docket Number: No. 51125,51125
• Citation: 255 Iowa 1067,125 N.W.2d 205
• Parties: Loretta KAUZLARICH, Administratrix of the Estate of Lillie Cline, Deceased, Appellee, v. Bert FITZWATER, Appellant.
• Court: Iowa Supreme Court

Page 205

125 N.W.2d 205

255 Iowa 1067

Loretta KAUZLARICH, Administratrix of the Estate of Lillie Cline, Deceased, Appellee, v. Bert FITZWATER, Appellant.

No. 51125.

Supreme Court of Iowa.

Dec. 10, 1963.

Ross H. Sidney, Austin, Grefe & Sidney, Des Moines, for appellant.

Milani & Milani, Centerville, for appellee.

THORNTON, Justice.

This is a guest case. Plaintiff's decedent lost her life while riding in the right front seat of defendant's automobile. The automobile went off of the highway on the left hand side and struck one of the pilings supporting a railroad overpass over Highway No. 60 about two miles south of Moravia in Appanoose County.

Defendant appeals urging the evidence was insufficient to support an inference of reckless operation on his part.

I. At the outset plaintiff contends there is nothing before us for review because defendant has made a blanket assignment of errors. In effect defendant has made a single assignment bearing on the sufficiency of the evidence to show recklessness. His position and contentions are clear and neither plaintiff nor this court are in any way misled. It is apparent from plaintiff's excellent brief and argument her counsel fully understand defendant's contention and is not prejudiced. Jerrel v. Hartford Fire Insurance Company, 251 Iowa 816, 817, 103 N.W.2d 83, 84.

II. It is our duty to examine the evidence to determine whether there is substantial evidence from which a jury might reasonably draw an inference of reckless operation. Only the evidence most favorable to plaintiff is considered whether or not contradicted. Lewis v. Baker, 251 Iowa 1173, 1177, 104 N.W.2d 575, 577. However, the burden is on plaintiff to prove defendant's recklessness. Goodman v. Gonse, 247 Iowa 1091, 1099, 76 N.W.2d 873.

Reckless operation of a motor vehicle as used in section 321.494, Code of Iowa, 1958, means more than negligence, more than want of ordinary care. It means, proceeding with no care coupled with disregard for consequences, the acts must manifest a heedless disregard for or indifference to the rights of others in the face of apparent danger or danger so obvious the operator should be cognizant of it, when the consequences of such actions are such an injury is a probability rather than a possibility. Recklessness may include willfulness or wantonness, but if the conduct is more than negligent it may be reckless without being willful and wanton. Siesseger v. Puth, 213 Iowa 164, 182, 239 N.W. 46, 54; Fritz v. Wohler, 247 Iowa 1039, 1041, 78 N.W.2d 27, 28; Schmitt v. Cutkomp, 248 Iowa 575, 578, 81 N.W.2d 662, 664; Lewis v. Baker, 251 Iowa 1173, 1177, 104 N.W.2d 575, 577; Beletti v. Schuster, 253 Iowa 1166, 115 N.W.2d 858; Wilcox v. Hilligas, Iowa, 117 N.W.2d 42, 44; Winter v. Moore, Iowa, 121 N.W.2d 82, 88; and citations in each of these authorities. In Fritz v. Wohler and Schmitt v. Cutkomp, both supra, we point out the elements of recklessness as follows: (1) No care coupled with disregard for consequences. (2) There must be evidence of defendant's knowledge, actual or chargeable, of danger and proceeding without any heed of or concern for consequences. And (3) The consequences of the actions of the driver are such that the occurrence of injury is a probability rather than a possibility. We have required evidence of a persistent course of conduct to show no care coupled with disregard of consequences. If it were not so required we would be allowing an inference of recklessness from every negligent act.

The evidence, viewed in the light most favorable to plaintiff, shows defendant was a friend of decedent and her family. Decedent was a widow and lived in Centerville. On March 15, 1960, defendant, accompanied by deceased, drove decedent's daughter, Marcella, then 16 years old, and three of her girl companions to Moravia to a church skating party. It was snowing at the time. They arrived there around 7:00 p. m. Defendant and decedent left the girls and drove to the Twilight Club. They were to pick the girls up after the party. The club is apparently located on the south edge of Moravia on or near Highway No. 60. Due to the severity of the snow storm the skating party was called off and Marcella and one of the other girls, Judy Carson, 16 years old, were brought to the Twilight Club in another car. They arrived between 7:30 and 8:00 p. m. It was snowing hard at the time. All remained at the club until about 10:30 p. m. The return trip to Centerville was then started. Defendant described the storm as a blizzard. At the time the return trip was started defendant cleaned the windshield. Decedent was seated in the right front. Marcella and Judy Carson were in the back seat, Marcella behind the driver. Both were seated forward with their arms on the rear of the front seat watching the road and speedometer. Either before the trip was actually started or shortly thereafter decedent suggested they spend the night in Moravia. Defendant replied, 'We will make it God being willing.' Once or twice the girls told defendant to slow down, just when these suggestions were made is not clear. Defendant did not slow down but proceeded at the same speed. Judy testified the speed was 24 or 25 m. p. h., Marcella that it was 25 to 30 m. p. h. At times as they proceeded south the windshield was covered with snow either from wet snow or gusts of dry snow. Plaintiff's evidence shows both. At other times the visibility was such the roadway could be seen ahead. Plaintiff's evidence is not clear as to the extent of visibility or the length of time visibility was obscured. Nor does her evidence disclose the location of the auto on the roadway until the auto hit the piling on the left side. Defendant's evidence, by testimony of a driver following the tracks made by defendant's car, shows the witness followed defendant's tracks from Moravia to the point of the accident. He testified, '* * * I suppose he [defendant] veered maybe over on the shoulder enough so he could possibly tell he was off of the highway, ten would come back on again. * * * they were just normal tracks. They were located on the right side of the highway. * * * There was no weaving back and forth. * * *.' He further testified he didn't realize he was coming to the second overpass, he was watching the tracks, his lights showed defendant's car against the piling and he veered off to the right and under the overpass.

Plaintiff's evidence shows that just prior to the collision the windshield was covered with snow and the windshield wipers had completely stopped, '* * *, it was like a sheet had been pulled over the car.' Defendant did not put on his brakes or turn the car, be was driving between 25 and 30 m. p. h. Marcella testified on direct examination, 'It seemed quite a ways he drove when the headlights did not show through the windshield, I couldn't say how far.' On cross-examination she testified, 'The windshield became obscure more than a matter of a second or two before the crash. I couldn't say but it seemed longer than 10 seconds that the windshield became obscured before the crash.'

The point of impact was the dead center of the front end of the car. It struck the most easterly of the pilings supporting the railroad overpass. The piling was about 12 to 14 inches in diameter. From the Twilight Club to the collision underpass it is about two miles. The paving is 18'3"' wide. The distance between the pilings is 33' 7"'. The highway is about straight south from Moravia to just north of the collision underpass. North of the underpass the highway turns west and southwest, it is not a 90~ turn. The exact distance the turn is north of the underpass is not shown. From the turn there is a slight decline to the underpass. There is a 50-m. p. h.-curve sign three tenths of a mile north of the underpass. There is a low-clearance sign 310 steps north of the underpass. There were white and black diagonal boards on the pilings on each side of the highway and the jury could find there were reflectors on each side. Some distance north of the collision underpass is another underpass, at that point the highway is straight north and south. From the pictures in evidence it is clear the defendant did not proceed directly south from the point of the turn but that he turned some to his right and in so doing did not turn far enough to follow the highway on his own side of the road but went to his left across the left side of the pavement and struck the piling. The piling is 6' 5"' to the left of the left hand edge of the pavement.

Defendant at the time was a salesman traveling in the area. From his testimony it shows he was 49 years old at the time of trial, two years and seven months after the accident. He knew of both underpasses on the highway south of Moravia and of the turn to the west. He testified, 'As we made this trip, I knew exactly where we were, * * *.' He stated he saw the black and white diagonal boards on the piling but thought it was a similar...