Lewis v. Baker

• Decision Date: 02 August 1960
• Docket Number: No. 49935,49935
• Citation: 251 Iowa 1173,104 N.W.2d 575
• Parties: John L. LEWIS, Jr., Appellee, v. Arlo BAKER, Appellant.
• Court: Iowa Supreme Court

Page 575

104 N.W.2d 575

251 Iowa 1173

John L. LEWIS, Jr., Appellee, v. Arlo BAKER, Appellant.

No. 49935.

Supreme Court of Iowa.

Aug. 2, 1960.

Smith, Peterson, Beckman & Willson, Council Bluffs, for appellant.

Richard C. Turner and Matt Walsh, Council Bluffs, for appellee.

THOMPSON, Justice.

Although Section 321.494 of the Iowa Code, I.C.A. was without doubt enacted for a reasonable purpose, it has resulted in seemingly endless litigation. It is the so-called 'guest statute'; clear enough in itself, but most difficult to apply to the varying factual situations that arise. We are faced with this problem again in the case at bar. The trial court solved it by submitting the issues to a jury, which returned its verdict for the plaintiff, and we have this appeal.

The plaintiff was injured in a collision between an automobile in which he was admittedly riding as a guest of the defendant, and a truck. The accident occurred about 7:00 p. m. on February 9, 1957, on U. S. Highway 75, in Harrison County. The defendant's 1957 Chevrolet car was proceeding north on the highway, and it collided with a south-bound truck driven by Duane E. West on a curve about 2 1/2 miles south of Missouri Valley. Photographs show the collision to have been largely a 'sideswiping' one; the damage was to the left sides of both vehicles.

The plaintiff was 56 years of age and the defendant 31. They met in the Midway Tavern in Council Bluffs on the afternoon in question, where plaintiff arrived about 1:00 p. m., and where he consumed six beers between that time and four o'clock following. There was no prearrangement between the parties as to any activity, but during the afternoon the idea of going coon hunting came up, and at the time it seemed a good thing to do. One Orville Vanness, 38, who was also in the tavern joined the party and they started out to collect the necessary equipment, including several coon dogs. Whether there were four or five of these is in some dispute, but it is not thought that the presence or absence of one coon dog more or less has any bearing on the legal propositions herein involved. The party started from Council Bluffs about sun down, with the defendant driving his nearly new Chevrolet, the plaintiff riding next to him in the middle of the front seat, Vanness on the right, and the coon dogs dispersed in the back of the car and one or two in the trunk. So the party proceeded to the scene of the collision.

I. Six errors are assigned by the defendant. The first is that the court erred in denying defendant's motion for directed verdict and later for judgment notwithstanding. This, of course, brings up for analysis the facts in the case; particularly whether there was any evidence of recklessness sufficient for submission to the jury. Our question is whether, taking the evidence in its most favorable aspect for the plaintiff, there was a jury issue. It is not for us to say whether there was recklessness, but only whether reasonable minds, such as in theory at least are found in our juries, might so conclude. We shall not attempt to analyze or discuss the many cases in which we have dealt with the problem; to do so would require an extensive treatise prohibited by limitations of time and space. It is sufficient to say that among the numerous decisions facts and language can be found which adept counsel can cite in support of either side of almost any case arising under the statute.

So it is here. Both plaintiff and defendant have extensive briefs in which they rely upon many of the various decisions which have been made under differing states of facts. In the case at bar, we think there was substantial evidence which requires a holding there was a jury question upon the issue of recklessness. Here we consider only the evidence favorable to plaintiff, whether or not it was contradicted. This is the rule when we determine whether a jury question was engendered, when the complaint is that a peremptory verdict for the defendant should have been directed. The trial court properly instructed that 'recklessness means more than want of ordinary care. It must be shown that the operator of the vehicle used no care, coupled with a disregard for consequences, and to constitute recklessness, the acts must be such as to manifest a heedless disregard for or indifference to the rights of others. It requires actual knowledge of an existing danger or the presence of danger so obvious that the operator should have knowledge of it and proceeded without heed or concern for the consequences, and that the conduct of the operator of the vehicle is such that the consequences of his actions are such that the injury is a probability rather than a possibility. * * *'.

The facts supporting plaintiff's contention that the matter was properly submitted to the jury show that as defendant's car proceeded north on an 18 foot paved highway, it was being driven at a speed of from 110 to 115 miles per hour. The plaintiff testified that at defendant's request he looked at the speedometer, saw the indicator was wavering between those speeds, and so advised him. This was shortly before the accident. He also testified that he then said 'That's too fast, cut her down, we got plenty of time, there is no use to get there any sooner, too big a hurry.' To this, according to the plaintiff, the defendant laughed and replied 'I had a hundred ten a couple times before and one of these days I'm going to see how fast it will go.' There was no change in speed from the time of this conversation to the place of the collision. Lyle Rodenburg, a 17 year old youth who was riding in a car going north on the highway testified that when the defendant's car passed the one in which he was riding about a mile and one-half south of the accident scene, it was traveling at 85 or 90 miles per hour. This was just before it reached an underpass where there was a curve in the road, described as somewhat sharper than the one on which the collision occurred. Rodenburg watched defendant's car until it turned at the underpass and then lost sight of it. Duane West, driver of the truck involved in the accident, said that defendant's automobile was traveling 'at least 80 miles per hour' as it came toward him. Harry Friend, who was driving a truck south immediately behind Duane West's truck, testified: 'He could have been going faster, but he was going 60 at least.' Ronald Totten, who was riding with Friend, said: 'In my opinion the automobile was traveling at least 90.'

A warning sign at the approach to the curve from each direction showed the permissible speed to be 45 miles per hour. The curve itself is described as 'a five degree curve' and the total change of direction in the entire curve is 22 degrees six minutes. The defendant was familiar with the highway and with the particular curve. He had driven it many times; a few years before he had driven the road each way five days each week on his way to and from his employment. The road was approximately level at the curve, and so far as the record shows was dry. The time was at least one hour after sundown, so that apparently it was almost if not quite fully dark.

We have often said that speed alone is not sufficient evidence of recklessness to engender a jury question. Thornbury v. Maley, 242 Iowa 70, 74, 45 N.W.2d 576, 579, and citations. But the statement is so hedged about with qualifications that it means little. Whether excessive speed may amount to recklessness depends upon the attendant circumstances; and there are always attendant circumstances. These arise from the condition and width of the highway, of the light conditions, whether the road is straight or curved, the presence or absence of other traffic, and innumerable other facts which arise in and vary from case to case. From these things, coupled with speed, the courts must determine the issue. Speed does not operate in a vacuum; there are always other conditions surrounding it.

The situation in the present case seems identical with that which prevailed in Anderson v. Elliott, 244 Iowa 670, 57 N.W.2d 792, in which we held there was a jury question upon negligence. There, as here, the car entered a curve with which the driver was thoroughly familiar, at night, at a speed of 80 miles per hour. There was no other traffic involved; the automobile failed to make the curve and injury resulted. In the instant case, there is substantial evidence that defendant's car entered the curve at such a speed it could not follow the road so as to remain on its own side, but crossed over to its left and collided with the truck. Duane West, the driver of the truck, testified he saw the car coming toward him at high speed, concluded it was not going to be able to make the curve, and pulled the truck to its right as far as he could; it was partly on the right shoulder when struck. We think the excessive speed, the knowledge of the curve on the part of the defendant, his failure to heed plaintiff's warning, the limited visibility due to darkness, and the 45 miles per hour warning sign, are facts from which the jury was properly permitted to determine the issue of recklessness. There was a probability rather than a mere possibility of danger. Schneider v. Parish, 242 Iowa 1147, 1152, 49 N.W.2d 535, 538; Russell v. Turner, D.C., 56 F.Supp. 455, 462. The cases of Thornbury v. Maley, supra; Claussen v. Johnson's Estate, 224 Iowa 990, 278 N.W. 297, and McKlveen v. Townley, 230 Iowa 688, 299 N.W. 25, are also quite similar in their facts and to the instant case, and in each we found a jury question.

The defendant relies somewhat upon the case of McBride v. Dexter, 250 Iowa 7, 92 N.W.2d 443, 448. There the accident happened upon or near the entrance to an eight degree...