Murray v. Lang, No. 50078

• Court: United States State Supreme Court of Iowa
• Writing for the Court: HAYS; LARSON; THORNTON
• Citation: 106 N.W.2d 643,252 Iowa 260
• Decision Date: 13 December 1960
• Docket Number: No. 50078
• Parties: Maxine MURRAY, Administratrix of the Estate of George R. Murray, Jr., deceased, Appellant, v. James R. LANG and Jack Harger, Appellees.

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106 N.W.2d 643 252 Iowa 260 Maxine MURRAY, Administratrix of the Estate of George R. Murray, Jr., deceased, Appellant,
v.
James R. LANG and Jack Harger, Appellees. No. 50078. Supreme Court of Iowa. Dec. 13, 1960

[252 Iowa 262]

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Duffield & Pinegar, Des Moines, for appellant.

Cross, Hamill, Selby & Updegraff, Brierly, McCall & Girdner, Newton, for appellees.

HAYS, Justice.

Action to recover for the death of plaintiff's decedent who was killed as the result of a collision between the car in which he was riding, and being driven by the defendant Harger, and a car being driven by the defendant Lang.

The petition is in three counts. Count I, against defendant Lang, is based upon negligence and states that plaintiff's decedent was a passenger in the Harger car, but not a guest under Section 321.494, Code 1958, I.C.A. Count II is against defendant Harger, based upon negligence and alleges that decedent was a passenger in the Harger car but not a guest under the statute. Count III is against both defendants and seeks recovery based upon recklessness. It alleges that decedent was a passenger in the Harger car. At the close of the plaintiff's evidence the trial court sustained motions to direct a verdict for the defendants as to each of the three counts. Plaintiff has appealed.

The collision occurred about 6 p. m., August 28, 1958, on Highway No. 6, about three miles east of Newton, Iowa. At the place in question, the highway runs east and west with quite a grade or incline extending to the west. The highway is paved with a yellow no passing line running along the north side of the center line. The Harger car was going west toward Newton and started up this incline at a speed of

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45 to 50 miles per hour. About one-fourth of the way up this incline, and about 650 feet from the crest thereof, a car, known as the Wharff car, was [252 Iowa 263] parked on the south shoulder, headed west with its parking lights lighted. Harry Wharff and Earl Farr were standing beside it. In the Harger car were Harger, the operator, Ruth Buchmeier and the decedent. All testified that as the car went by the Wharff car, the occupants thereof turned to the south and waved to Wharff and Farr. In so doing the Harger car swerved to the left, at least partially over the passing line, and headed in a southwesterly direction. Wharff and Farr both state that at this time they noticed the Lang car come over the crest of the hill, headed east, at a speed of about 60 miles per hour and in its proper or south lane of travel. Immediately both cars swerved to the north and collided about 250 feet east of the crest of the hill. The record is not too clear as to whether the collision was on the north of the center line or astride it. As a result thereof the decedent was killed.

The car in which decedent was riding was registered in his father's name but there is some question raised as to whether or not decedent was the owner thereof. At any rate, it was with the permission of decedent's father that decedent had the car on the evening in question. As between Harger and decedent we will assume decedent was the owner. Decedent and Harger, both minors, lived in or near Newton. On the day in question they both had dates in Kellogg and went there in decedent's car. Upon arrival there, one of the girls was not available, so Harger, driving, Ruth Buchmeier, a thirteen year old girl, and decedent left for a drive-in theater in Newton. Decedent was on the right hand side of the front seat at the time of the collision. Harger and Buchmeier were both injured and have no recollection of anything after passing and waving at the Wharff car.

I. While only the evidence offered by the plaintiff is before us, we have set it forth in the light most favorable to plaintiff, in determining whether or not a directed verdict should have been given. Strom v. Des Moines & Central I. Ry. Co., 248 Iowa 1052, 82 N.W.2d 781.

II. Appellant alleges error, as to Count I, in the court's holding that there had been a failure of proof as to actionable negligence upon the part of defendant Lang.

[252 Iowa 264] The trial court recognized the rule that one acting in a sudden emergency, not of his own making, without sufficient time to determine with certainty the best course to pursue, is not held to the same accuracy of judgment as would be required of him if he had time for deliberation. 65 C.J.S. Negligence § 17a; 38 Am.Jur. Negligence, sec. 41. While it also recognized the rule that ordinarily the question whether such an emergency existed and whether one so confronted acted as an ordinary prudent person would have acted when so confronted, is a question for the jury, 65 C.J.S. Negligence § 252a, it also recognized the rule announced in Koob v. Schmolt, 241 Iowa 1294, 45 N.W.2d 216, and cited in Menke v. Peterschmidt, 246 Iowa 722, 733, 69 N.W.2d 65. It is there said that negligence should not ordinarily be predicated on an emergency, not of his own making, confronting a driver who has only three seconds to make a decision. See also, Rich v. Herny, 222 Iowa 465, 269 N.W. 489; Strom v. Des Moines & C. I. Ry. Co., 248 Iowa 1052, 82 N.W.2d 781, supra.

It appears without dispute that Harger violated Section 321.304, subd. 3, Code 1958, I.C.A., by crossing over the yellow no passing line on the pavement. No negligence is disclosed upon the part of the defendant Lang, at least prior and up to the moment that he came over the crest of the hill. At this moment he found himself confronted with a car approaching him at 45 miles per hour, headed in a southwesterly cirection and directly in his lane of travel. On the south shoulder, some 650 feet ahead, was a car headed west. According

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to evidence offered by a Highway Patrolman these two cars, Harger and Lang, were approaching each other at the rate of 157 feet per second which allows an elapsed time of three or four seconds before they would meet. We think as was said in Rich v. Herny, 222 Iowa 465, 470, 269 N.W. 489, 492, 'the suddenness of the collision and the emergency presented were such that it cannot be said that an ordinary prudent person would not have acted in the same manner under the same circumstances'. The court properly directed a verdict as to Count I.

III. Count III, against both defendants, Lang and Harger, seeks to recover for the alleged reckless operation of the [252 Iowa 265] respective operators. From the direction of a verdict for both defendants, error is assigned only as it pertains to defendant Harger. We may concede here that...