Levinson v. Hagerman

• Citation: 244 N.W. 307,214 Iowa 1296
• Decision Date: 20 September 1932
• Docket Number: No. 41455.,41455.
• Parties: LEVINSON v. HAGERMAN ET AL.
• Court: United States State Supreme Court of Iowa

214 Iowa 1296

244 N.W. 307

LEVINSON

v.HAGERMAN ET AL.

No. 41455.

Supreme Court of Iowa.

Sept. 20, 1932.

Appeal from District Court, Cerro Gordo County; John M. Rankin, Judge.

The plaintiff-appellant commenced this action seeking to recover damages against the defendants for injuries suffered by plaintiff while riding as a guest in defendant's automobile. The action is, therefore, brought under the “guest statute.” Section 5026-b1, Code 1927. The instant action is predicated on defendant's reckless operation of the car in question. The defendants entered a general denial, and further pleaded contributory negligence of the plaintiff, and that the plaintiff assumed the risks naturally incident to the trip, and that he acquiesced in the manner in which the car was being operated, and that his conduct had waived any claim against the defendant, and was estopped from asserting his action. We deem it unnecessary to discuss or determine these alleged defensive matters in this case.

The defendant further alleges that he was not guilty of reckless driving. Upon the conclusion of the plaintiff's testimony, the court entered a verdict on behalf of the defendant-appellees, and, pursuant to said ruling on the motion for a directed verdict, judgment was entered against the plaintiff for costs. Plaintiff appeals.

Affirmed.Smith & Feeney and L. R. Boomhower, all of Mason City, for appellant.

Senneff, Bliss, Witwer & Senneff, of Mason City, for appellees.

DE GRAFF, J.

The plaintiff was injured while riding as a guest in the defendant's automobile. The plaintiff alleges in his petition that he is a single person and a lawyer, and that he was injured “by and through the negligence, carelessness, and recklessness, of the defendant in the operation of said automobile.” It must be conceded under the issues of this case that the allegations of carelessness and negligence find no place here, and are not determinative allegations. The charge of recklessness is based in substance on the allegation that the automobile was driven at an excessive rate of speed on a paved highway upon which there was snow and ice, and in failing to retard the speed in approaching a bank of snow. In an amendment to the petition, the plaintiff alleges recklessness on the part of the defendant, who was driving the automobile heedlessly, without care, and in disregard of consequences, failing to reduce the speed of said automobile in attempting to pass through the bank of snow at the point where the automobile left the highway, resulting in injuries to both plaintiff and defendant. At the conclusion of the testimony offered by the plaintiff, the trial court, on motion of the defendant, directed a verdict for the defendant.

The testimony introduced showed that the plaintiff, Levinson, and the defendant Moersch lived in the town of Clear Lake, but had their places of business respectively in Mason City, Iowa, which is ten miles east of Clear Lake. The plaintiff ordinarily traveled between the two towns on an interurban car and the defendant Moersch drove an automobile.About 8:15 a. m. on the morning of January 19, 1931, the plaintiff was waiting for the interurban car, and, upon the approach of the defendant Moersch, the plaintiff, upon invitation of Moersch, got in the latter's car and started for Mason City. It was a bright and clear morning, cold but not freezing. Snow had fallen the evening before, and in some places there was snow on the pavement and at others the wind had swept the snow off. There was about six inches of snow in the ditch along the paving. At the place where the accident happened the snowplow had passed over the highway. Snow had been thrown up along the south side of the highway by the snowplow to a height of 12 to 18 inches. Automobiles were traveling on the north track of the highway which had been cleared by the snowplow. A number of automobiles had already passed over the highway that morning.

The plaintiff, Levinson, was sitting in the front seat of the car with the driver, Moersch, and states that the speed was about 45 miles an hour. A young woman whose car they passed just before the accident testified about 40 miles an hour. The record discloses that at some places the roadway was worse than in others, and the defendant Moersch slackened the speed at some of these places and at others he did not. After they had traveled 7 or 8 miles, just after passing the young woman, who was driving at the rate of 25 miles an hour, they went over the top of a slight hill, and plaintiff states the car gained momentum as it went down the hill, so that the car was travelling about 50 miles an hour. The contractor who built the road testified that the grade on the hill is 1 1/2 per cent. or “eighteen inches drop to the hundred feet.” As they were travelling down this slight decline, the right wheels of the car got too close to the snow which had been thrown up on the south part of the paving. There is no evidence that the car skidded on any snow or ice. The evidence shows that the right wheels got into this snow on the south side...