King v. Barrett

• Decision Date: 11 March 1971
• Docket Number: No. 54330,54330
• Parties: Sandra KING, a Minor, by Eldon King, her Father and next friend, and Eldon King, Appellants, v. Wayne W. BARRETT, Appellee.
• Court: Iowa Supreme Court

Page 210

185 N.W.2d 210

Sandra KING, a Minor, by Eldon King, her Father and next friend, and Eldon King, Appellants, v. Wayne W. BARRETT, Appellee.

No. 54330.

Supreme Court of Iowa.

March 11, 1971.

Fuerste & Carew, Dubuque, for appellants.

Kintzinger, Kintzinger, Van Etten & Setter, Dubuque, for appellee.

UHLENHOPP, Justice.

The main question in this automobile guest case is whether defendant generated a jury question on assumption of risk.

Plaintiff Sandra King, 17, lives with her parents at Epworth, Iowa, where her father, Eldon King, is town marshal. In the summer of 1968 she was keeping company with defendant Wayne W. Barrett, 21, a farm hand who owned a Rambler car. The evidence is bereft of proof that defendant was a bad driver generally or that he drove recklessly on prior occasions.

On the evening of June 27, 1968, defendant decided to go out with male companions to do some drinking, rather than to have a date with plaintiff. This caused a rift between the couple. Defendant did go out with his companions until a late hour. The next day he was tired, for he had to rise early to do chores. Also the next day, the back glass in his car was out, with the broken glass on the back seat. He claimed the glass just 'popped out' and that his employer would so testify. Plaintiff evidently had a different notion.

On the afternoon following the night out, defendant came to see plaintiff, as they were to go to a movie that evening. The atmosphere was not altogether congenial because of his having been out with the boys and the broken window. After plaintiff had washed dishes from the evening meal, the couple visited friends elsewhere in Epworth and then started to Dubuque for the show.

At this point the jury could have made either of two findings. It could have found from plaintiff's discovery deposition that the rift had healed and the young couple were again in good spirits. On the other hand, it could have found from her testimony on trial that she continued to question defendant about the broken glass, he was irritated and not feeling very well anyway, and a snit was in progress.

Defendant drove east out of Epworth on old United States Highway 20 with plaintiff in the front seat. The glass in the back seat rattled and further jangled the couple's nerves. Shortly defendant turned to the north on a side road, stopped, shook the broken glass off the seat, and proceeded back to the highway. So far nothing unusual about his driving appeared, but the trial testimony discloses that the irritation continued to be present. Defendant seemed to have the impression that plaintiff was overly possessive of him.

A little farther east on old Highway 20 the couple came to a graveled road leading south a half-mile to heavily-traveled new Highway 20. Defendant had been over this road before from the opposite direction. The road contained three knolls in the half-mile, the last one cresting about 300 feet before the stop sign at the entrance to new Highway 20. No impediment to the view existed from atmosphere or darkness. As a driver comes down the last 300 feet on the graveled road, his view to the east on new Highway 20 is obstructed until near the intersection, but the intersection itself and the stop sign there are in plain view.

The transmission in defendant's Rambler has four forward speeds and the shift lever is mounted on the floor board. For reasons unknown--since defendant suffers from amnesia regarding that last ride--when defendant turned south on the gravel his manner of driving changed. Whether he was going to 'show' plaintiff because of his irritation, whether he wanted to give her a thrill by going over the knolls at high speed, or just what motivated him cannot be said. But with the three hillocks before him in that half-mile, he very rapidly accelerated by doing what is called 'speed-shifting'--that is, putting the accelerator all the way down and quickly going through the gears so as to gain maximum speed in minimum time. Defendant soon got the car to 65 to 70 miles per hour, which appears to be about its top speed, and went over the knolls.

Plaintiff was scared but she was not going to say anything in view of their difficulty, and she did not say anything. Instead, she fiddled with the radio dial and looked down at defendant's foot on the accelerator. The accelerator was to the floor.

When they came to the last knoll they had only about 300 feet in which to get stopped. Plaintiff, frightened, saw defendant take his foot off the accelerator and move it to the brake, but he did not depress the brake. Instead, he put his foot back on the accelerator and floored it, and the Rambler shot out into the intersection just in time to collide with a car from the east on Highway 20. Plaintiff sustained serious injuries as a result.

The trial court submitted the case to a jury on two issues as to liability, whether defendant was reckless and whether plaintiff assumed the risk of such recklessness.

One of the contested issues on the trial was the distance available to a driver in which to slow down and stop after traversing the last knoll. Another issue was the point on the graveled road at which traffic can be seen to the east on Highway 20. A deputy sheriff and other witnesses gave estimates on the trial. A juror in the case decided to find out about these things for himself. One evening during the trial he went out, made a test drive over the road, and observed the distances. From this test drive he concluded that the distance estimate of Eldon King as a witness was inaccurate, that the estimates of King and the deputy sheriff as to visibility with respect to the stop sign were not correct, and that a driver at 60 miles per hour (the speed limit) would have difficulty stopping for the sign after coming over the last hill. When the case went to the jury, this juror related his observations to that body.

The jury returned a verdict for defendant. Hence this appeal by plaintiff and her father.

As the case comes to us, three legal issues must be decided. Did plaintiff make a case of recklessness for the jury? Did jury misconduct require another trial? Was assumption of risk for the jury?

I. On the first issue, under the law plaintiff was required to adduce substantial evidence of recklessness before a jury issue was generated. 'It is the general rule that to generate a jury question there must be substantial evidence. A mere scintilla is not enough.' Ellingson v. Kramer, 255 Iowa 1257, 1262, 125 N.W.2d 777, 780.

On the basis of past decisions, we have little difficulty in concluding plaintiff did introduce substantial evidence that defendant was reckless and not merely careless, if we view plaintiff's evidence in its most favorable light as we must. We need not retrace prior steps regarding the meaning of 'reckless'; that has been done several times. A recent decision, one quite similar to the present case, is Winkler v. Patten, 175 N.W.2d 126 (Iowa). We think plaintiff here made a jury case on recklessness so that the other issues in the appeal must be faced. The period of recklessness was short-lived, but a persistent course of conduct is not essential. That point was decided in the Winkler case.

II. On the second issue, jury misconduct, we are aware that in this day of rapid transportation and communication jurors are frequently familiar with a locus in quo and indeed may daily drive over a scene where an accident in litigation occurred--or may go and casually look it over. We understand, too, that trial courts cannot be too punctilious in this area, lest numerous verdicts be unduly jeopardized. Situations of the kind to which we refer are illustrated by Mead v. Scott, 256 Iowa 1285, 130 N.W.2d 641, and State v. Little, 164 N.W.2d 81 (Iowa).

But the present situation goes beyond those cases. Here a juror test-drove the road, made observations at variance with those of witnesses who testified, and related his findings to the jury. The jurors could not impeach their verdict by saying this additional information influenced them, but the collecting of the data and the reporting of it during deliberations constituted such jury misconduct as to vitiate the verdict. The parties did not know during trial of the test drive, had no opportunity to cross-examine the juror, and could not contend in argument against his findings. They had a witness in the case of whom they were unaware. We conclude that the misconduct was reasonably calculated to and probably did influence the verdict and that a new trial should have been granted on this basis. See Annot., 11 A.L.R.3d 918; Note, 10 Drake L.Rev. 126.

III. We are thus brought to the most troublesome issue--whether substantial evidence appeared that plaintiff accepted the risk of defendant's recklessness. Here again the principle applies that a scintilla of proof will not suffice. The burden to plead and prove that plaintiff accepted the risk is on defendant. Johnson v. McVicker, 216 Iowa 654, 247 N.W. 488; Bessman v. Harding, 176 N.W.2d 129 (Iowa).

Difficulty arises in cases involving this issue because of the tendency to confound assumption of risk and contributory negligence. Contributory negligence does not require actual knowledge of the risk on the part of the injured person or an actual intent by him to take the chance of injury from it. Contributory negligence is predicated on the conduct of an ordinarily prudent person similarly situated. On the other hand, assumption of risk requires knowledge of the risk and acceptance of it. Bohnsack v. Driftmier, 243 Iowa 383, 52 N.W.2d 79. As stated in Prosser, Law of Torts, § 67 at 454 (3d Ed. 1964), 'Thus assumption of risk is governed by the subjective standard of the plaintiff himself, whereas contributory negligence is measured by the objective standard of the reasonable man.'

Examination of our guest cases reveals that assumption of risk contains several elements: first, recklessness or intoxication on ...