Miller v. Mathis

• Decision Date: 06 April 1943
• Docket Number: 46097.
• Citation: 8 N.W.2d 744,233 Iowa 221
• Parties: MILLER v. MATHIS.
• Court: Iowa Supreme Court

8 N.W.2d 744

233 Iowa 221

MILLER v. MATHIS.

No. 46097.

Supreme Court of Iowa

April 6, 1943

Stipp, Perry, Bannister & Starzinger, of Des Moines, for appellant.

Harold S. Thomas and Kent Emery, both of Des Moines, for appellee.

MILLER Justice.

Plaintiff's petition asserts that plaintiff is a practicing attorney and that defendant is a realtor; that on December 30, 1940, at the instance and request of defendant, plaintiff accompanied defendant in an automobile owned and operated by defendant for the purpose of driving from Des Moines to Sioux City to secure an affidavit for correction of the title to property in the sale of which both parties were interested; that defendant was negligent in the operation of his automobile resulting in serious personal injuries to plaintiff for which he sought judgment in the sum of $10,000. The petition as amended asserted eight specifications of negligence, only four of which were submitted to the jury in the court's statement of the issues, as follows: "1. In driving said car at a high and excessive rate of speed at said time and place under the conditions and circumstances then and there existing. 2. In failing to have said car under control at the aforesaid time and place. 3. In operating said automobile at the time and place aforesaid at such a rate of speed so as not to be able to stop within the assured clear distance ahead. 4. In failing to keep a proper lookout." The answer of the defendant contained three divisions, but, in the statement of the issues, the court submitted only the following: "The defendant denies each and every material allegation in plaintiff's petition contained. The defendant denies that defendant was negligent but alleges that whatever the conditions of driving and conduct of the driver were at the time of the accident, plaintiff had knowledge thereof and acquiesced therein." The jury returned a verdict in favor of the defendant and, judgment being entered thereon, plaintiff appeals.

While the plaintiff assigns two errors, they both relate to the court's giving of instruction No. 12, as follows "You are instructed that it is the law of this State that if a passenger in an automobile acquiesces in the method and manner of operation of the same by the operator, or if the passenger voluntarily becomes a guest in an automobile and after he has assumed his position in the car it comes to his knowledge that the driver is operating the car in a negligent manner and there is danger of injury to himself and with such knowledge on his part he acquiesces in the method and manner of the operation, he cannot recover. Therefore if you find that defendant has established by preponderance of the evidence that the plaintiff in this case, after assuming his position in the automobile driven by the defendant had knowledge that the defendant was operating his car in a negligent manner and there was danger of injury to himself in such operation, and he failed to protest the manner and method of its operation and sat by and acquiesced in such operation, he cannot recover. It is for you to determine, under all of the evidence in this case, whether the plaintiff had such knowledge and did or did not protest the manner and method of the operation of the automobile driven by the defendant at the time and place in question."

Plaintiff excepted to the giving of said instruction and made the exceptions thereto one of the grounds for his motion for a new trial. His assignment of error in this court, based upon the exceptions taken in the trial below, which asserts that the instruction was erroneous because the question of assumption of risk did not arise in the case, the instruction was not limited to those matters which the plaintiff had the opportunity to see and appreciate and regarding which he had time to make a choice, but was applied generally to the conditions right up to the time of the catastrophe when he had no opportunity to make a choice, was too broad because it was for the jury to say whether a reasonably prudent man would have protested to the driver.

The record herein presents disputed questions of fact. Briefly, the jury was warranted in finding the following facts: Plaintiff and defendant undertook to drive from Des Moines to Sioux City in defendant's car with defendant driving. They started out at about 3 P. M., December 30, 1940. The accident that caused plaintiff's injuries occurred about a mile and a half southeast of Mapleton, about 8 P. M. They ran into snow west of Guthrie Center. Plaintiff suggested they take the Hiawatha train on the Milwaukee Railroad. It was still snowing when they turned north at Harlan. As they approached Denison, plaintiff suggested the snow was getting thick, it was getting hard to drive, that they change to a bus or train. They stopped for dinner at Denison, checked up on schedules but continued in defendant's car. It was snowing when they left Denison. Plaintiff rode in the front seat. He made no suggestions how the car should be driven. The accident occurred at a curve in the highway as it approached a bridge. As the road approached the curve it was straight for a distance of two miles. There was snow on the ground; it was slushy and snowing; defendant was driving about 65 miles per hour; the windshield wipers were working they made the corner curve but lost the road, went through a guard rail into a ravine.

In his exceptions to instruction 12, plaintiff asserted: "The whole matter happened so quickly that there was no chance to make a selection, and the plaintiff had no opportunity to get out of the car or make a choice. The question whether he in this brief interval should have spoken to the defendant is not one of assumption of risk but one of contributory negligence, and in such an interval the time for speaking is insufficient to correct the error which caused the impending accident."

Defendant, on the other hand, contends: "But it will not do for the appellant in a suit based upon a trip that lasted over four hours, and under allegation 'that he was riding in the automobile of the defendant for their mutual, definite and tangible benefit', and, after testifying to the jury of driving a hundred miles through snow and on a wet and slippery pavement, to now ask this court to confine its decision to the last one and one-third seconds prior to the accident."

As above pointed out, the first and third specifications of negligence, which the court submitted to the jury, asserted that defendant operated the automobile at a high and excessive rate of speed under the conditions and circumstances then existing and greater than would permit him to bring the car to a stop within the assured clear distance ahead. Plaintiff's own testimony is to the effect that the weather conditions were adverse, that he was apprehensive and repeatedly suggested changing the mode of travel. Plaintiff and his witnesses testified that it had been snowing just before the accident and their testimony indicates that it was snowing at the time; the road was wet; it was dark; visibility was not good. Plaintiff testified that defendant was driving 65 miles an hour. The jury might have found that the speed was excessive and that the excessive speed under adverse driving conditions caused defendant to "lose the road" with plaintiff's injury resulting therefrom and that plaintiff knowingly acquiesced in such excessive speed under adverse driving conditions for sufficient length of time to have assumed the risk of injury therefrom. On the other hand, the jury might have found that the defendant failed to keep a proper lookout when he undertook to make the turn and that this was the sole proximate cause of the accident. If the jury made the former finding on the issue of proximate cause plaintiff could not recover because of his contributory negligence. If it made the latter finding, that would not be so because, for acquiescence to be contributory negligence, it must be in reference to that negligence which caused the injury.

For example in Blashfield's Cyclopedia of Automobile Law and Practice, Perm. Ed., vol. 4, § 2514, the author states: "Where, at the time a guest accepts the invitation to ride in an automobile, the weather conditions are such as to make it dangerous to take the projected trip, the guest assumes the risk of injury from the hazards thus present to his view and understanding; but he is...