Mayer v. Sheetz, No. 43820.

• Court: United States State Supreme Court of Iowa
• Writing for the Court: RICHARDS
• Citation: 273 N.W. 138,223 Iowa 582
• Docket Number: No. 43820.
• Decision Date: 11 May 1937
• Parties: MAYER v. SHEETZ, Adm'r of Singmaster's Estate.

223 Iowa 582
273 N.W. 138

MAYER
v.
SHEETZ, Adm'r of Singmaster's Estate.

No. 43820.

Supreme Court of Iowa.

May 11, 1937.

Appeal from District Court, Keokuk County; D. W. Hamilton, Judge.

Law action for damages, based on alleged reckless operation of an automobile. From judgment against plaintiff, she appealed.

Affirmed.

Edgar C. Hamilton, of Sigourney, for appellant.

Putnam, Putnam, Fillmore & Putnam, of Des Moines, and H. F. Wagner and C. G. Updegraff, both of Sigourney, for appellee.

RICHARDS, Chief Justice.

Plaintiff seeks damages from defendant-administrator on account of physical injuries she sustained while riding as a guest in an automobile being operated by defendant's decedent. The statutory rule is that for such injuries a guest may not recover from his or her host. The only exception, so far as concerns this case, would be in event the damages were caused by decedent's reckless operation of the car. Section 5026-b1, Code 1935. Plaintiff alleged there was such reckless operation, but after all her evidence had been introduced the district court held it was not sufficient to warrant submitting the question to the jury. A verdict was directed for defendant, and a judgment rendered against plaintiff. Therefrom plaintiff has appealed.

The evidence that was before the trial court, when it made its ruling, fixes Friday, the 13th of September, 1935, as the date of the occurrence in which plaintiff was injured. At 8 o'clock in the evening of that day, plaintiff and her husband, brother, sister, and two friends had driven to decedent's farm home. The two families, plaintiff's and decedent's, had been long time friends, often in this manner visiting in each others' homes. Shortly after 9 o'clock of the same evening the whole party, assembled at decedent's home, decided to drive to the town of Richland, a few miles away. Accordingly, decedent and his wife, and plaintiff and her brother, entered decedent's car and started toward town, decedent driving. Plaintiff's brother sat to the right of decedent in the front seat and decedent's wife to the right of plaintiff in the rear seat. The others of the party followed in another car. After driving west a short distance, decedent reached primary highway No. 77 and started south thereon. The car then traveled first over a level stretch, then down a long hill and over a river bridge, then around a curve, then across a little flat, then up a hill and over its brow to the place of the accident on the hill's south slope. From the river bridge to the place of the accident was a little less than a mile. On the south slope of the hill last mentioned, decedent's car and another car, driven by one Morrow, traveling north at thirty to forty miles per hour on the same highway, did not succeed in passing in safety, some part of the left side of each car contacting some part of the left side of the other. That is, the cars sideswiped. After the impact the Morrow car went on and stopped, without leaving the road, about forty feet north of the place of the contact, headed southwest. Decedent's car proceeded on south for approximately two hundred feet and then went off the high fill at that point into a ditch on the east side of the highway.

The recklessness of decedent alleged in plaintiff's petition was the “operating said car at a high, dangerous and excessive speed, in the night time, on a loosely graveled highway, in the center of said highway, in a reckless and heedless manner without heed of or concern for the consequences.” The salient evidence with respect to each of these specific allegations may be stated as follows: First, as to speed, there was plaintiff's testimony that decedent's car gained speed coming down the first hill and in her opinion was traveling sixty miles per hour at the river bridge; that the speed increased thereafter

[273 N.W. 139]

and in plaintiff's opinion the car was traveling seventy or seventy-five miles per hour immediately prior to the accident. But it also affirmatively appears from plaintiff's testimony that there was no swerving of the car, nor are there shown any other circumstances indicating that any loss of control resulted from or accompanied the speed. The car pursued a straight course though it crossed a bridge and rounded a curve. Second, admittedly it was nighttime. Third, with respect to the allegation that decedent was driving on a loosely graveled highway, the evidence is that it was a primary highway, graveled surfaced. But there is no evidence that there was danger in driving upon this particular road that would not be inherent in driving upon any primary highway similarly surfaced, the testimony being that “as graveled roads go” the highway was in good condition. It...