McKlveen v. Townley, 45592.
| Decision Date | 19 September 1941 |
| Docket Number | No. 45592.,45592. |
| Citation | 299 N.W. 25,230 Iowa 688 |
| Parties | McKLVEEN v. TOWNLEY et al. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Black Hawk County; Geo. W. Wood, Judge.
This is a so-called “guest” case. Judgment on verdict for plaintiff. Defendants appeal. Appellants complain of the ruling on motions to direct, the ruling on motion for new trial, the refusal to give certain instructions, and the giving of certain others.
Reversed.
McCoy & Beecher, of Waterloo, for appellants.
G. C. Stuart and A. V. Hass, both of Chariton, and Reed & Beers, of Waterloo, for appellee.
On the 16th day of December, 1938, Vernon Townley, who will for convenience be spoken of as if the sole appellant, was driving the car of co-defendant (his father) with the latter's consent. Appellant was a student at Iowa City and on the date mentioned had returned to his home in Waterloo. In keeping with some previous arrangement he drove to New Virginia to pick up Virginia McKlveen, appellee's intestate, and from thence proceeded to Des Moines to meet mutual friends. Immediately at and for some distance prior to the point of the accident, appellant was driving approximately north on a pavement eighteen feet wide to a point where the highway swings to a curve to the northwest at an angle of about fifty-one degrees. At the same time one Ressler was coming from the north on the west side of the pavement with a truck and trailer. The vehicles met in violent collision, the right front of appellant's car striking against the left front of the truck. The condition of the truck is not described, but the right front of the car was completely crushed. When the accident was over the truck was on the west or right hand side of the road, with the rear of the trailer a short distance on the pavement. The car was close by, on the wrong side of the highway and off of the pavement.
The witnesses who first approached say that the truck was in the ditch and against the bank. There was in fact scarcely any ditch, but a slight depression and a steep incline as will appear by the photograph to which reference will be made. Appellee's intestate was found near the truck dead with her neck broken. Appellant lay nearby unconscious. Roach, riding with the driver of the truck, was dazed or practically unconscious. Ressler's condition at the time was not described and is not important. He died before the trial and we do not have the benefit of his testimony.
From here on the picture becomes blurred and obscure. Appellant remembers only a crash and has no memory of events beyond that. No witnesses other than those in the vehicles involved, saw them come together. This leaves only the witness Roach. He testified that the truck in which he was riding was moving about thirty-five miles per hour but did not know whether it had stopped before the accident. He testified that he saw appellant's car at a distance of 500 to 600 feet. He may have meant that he saw the reflection of lights at that distance. He said he saw the car only an instant before the impact and that he didn't see it until within fifty to seventy-five feet of it. Again, he said he saw it coming down the ditch on the wrong side of the road for about 200 feet.
We append a photostatic copy of an exhibit used on the trial.
The mark “A” in the middle background shows where the collision occurred. Appellant was driving north to that point while Roach and Ressler approached from the north beyond “A” to the left and behind the embankment shown. The night was dark, and so far as appears, there was nothing beyond what this photograph discloses to enable the witness to judge the speed, location or distance of appellant's car. Yet Roach undertook to say that appellant was driving seventy-five to eighty miles per hour and was approaching on the wrong side of the highway. The condition of appellant's car as to whether steering gear or something else went wrong is not shown.
[1] On this record, with the battered condition of the car and its location on the highway before it, the trial court held that there was sufficient evidence to take to the jury the question of recklessness. Appellant challenged this view by motions to direct and in the motion for new trial. The majority of this court think the trial court was right. As bearing generally on what has gone before, see Artz v. Chicago, R. I. & P. R. Co., 34 Iowa 153; Cooley v. Killingsworth, 209 Iowa 646, 228 N.W. 880;Siesseger v. Puth, 213 Iowa 164, 239 N.W. 46;Neessen v. Armstrong, 213 Iowa 378, 239 N.W. 56;Glass v. Hutchinson Ice Cream Co., 214 Iowa 825, 243 N.W. 352;Kisling v. Thierman, 214 Iowa 911, 243 N.W. 552;Klaaren v. Shadley, 215 Iowa 1043, 247 N.W. 301;Brown v. Martin, 216 Iowa 1272, 248 N.W. 368;Hobbs v. Traut, 218 Iowa 1265, 257 N.W. 320.
Appellant urges that the court in its instructions failed to tell the jury that the only specifications of recklessness that could be considered by it were those contained in the petition. A careful reading of the...
To continue reading
Request your trial