Neessen v. Armstrong, 40911.

• Decision Date: 17 November 1931
• Docket Number: No. 40911.,40911.
• Parties: NEESSEN v. ARMSTRONG.
• Court: Iowa Supreme Court

213 Iowa 378

239 N.W. 56

NEESSEN

v.ARMSTRONG.

No. 40911.

Supreme Court of Iowa.

Nov. 17, 1931.

Appeal from District Court, Grundy County; Geo. W. Wood, Judge.

Action by the plaintiff, as administratrix of the estate of Johan Henry Neessen, to recover damages for his death, alleged to have been caused by reason of the claimed reckless operation by the defendant of an automobile in which decedent was riding as a guest. The action is brought under the so-called guest statute, section 5026-b1, Code 1927. Defendant's answer was a general denial. Trial to the court and a jury. At the close of plaintiff's evidence, the court sustained defendant's motion for a directed verdict. Judgment accordingly. Plaintiff-administratrix appeals.

Affirmed.Willoughby, Strack & Sieverding, of Grundy Center, for appellant.

Pickett & Swisher, of Waterloo, for appellee.

WAGNER, J.

At the close of plaintiff's evidence, the defendant moved for a directed verdict on grounds which may be epitomized as follows, to wit: (1) That it has not been shown by the plaintiff's evidence that the decedent was free from contributory negligence; (2) that the evidence fails to show that the defendant was guilty of recklessness within the meaning of the statute; (3) that, under the entire record as made by the plaintiff's evidence, the court could not allow a verdict in favor of the plaintiff to stand.

[1] Since plaintiff's action is founded upon recklessness and not upon negligence, contributory negligence by the decedent is not an element to be considered or dealt with at any stage of the case. Therefore, there is no merit in the first ground of appellee's motion for a directed verdict. See Siesseger v. Puth (Iowa) 239 N. W. 46.

For a proper determination of the remaining grounds of appellee's motion for a directed verdict, we must necessarily refer somewhat in detail to the evidence, which we will now proceed to do. The accident occurred in the town of Grundy Center in the early evening of April 13, 1930. The defendant, at the time in question, was driving a Ford car; the decedent being seated to the right of the defendant. As a result of the accident, the decedent received a laceration across the throat, which cut the jugular vein, and also a puncture of the skull under the ear, and because of his injuries he died the following day. A proper conception of the scene of the accident and the environments can be best obtained by an observation of the accompanying plat, which in enlarged form was introduced in evidence:

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Iowa State Highway No. 90, Main street and G avenue are identical, and this highway runs east and west through the town, as shown by the plat. Fourth street is a north and south street, which crosses G avenue, Main street, or State Highway No. 90, and because of a surveyor's correction line, said street extending south from Main street lies a little to the west of a continuation of the same street which runs north from Main street. Fourth street, running north from Main street, is also a primary highway, known as No. 14. Both ends of Fourth street are 24.2 feet wide between the curbs. The width of the intersection lying between the two extensions of Fourth street is 47.5 feet between the curbs. The witness who made the plat for plaintiff testified that the distance from the west line of Fourth street running north to the east line of Fourth street running south is 66 feet. “That 66 feet is a part of the intersection.” There is a stop sign on Highway No. 14, or Fourth street, running north, which is 28.4 feet north of Main street, or Iowa State Highway No. 90. This stop sign is properly placed on the right hand side of Highway No. 14 as one approaches Highway No. 90. At the time in question, the defendant came from the north on Fourth street and entered the intersection to continue his journey on the same street leading south. A Buick sedan, driven by Leversee, approached the intersection from the west. It appears from the record that the defendant was first within the intersection. Leversee, as a witness, testified that, as he was traveling east on G avenue (Highway No. 90) and was past the center of Fourth street (running south), the Ford runabout (the car driven by the defendant) approached from the northeast and the right front wheel of the Ford hit the left front wheel of his car at an angle of about 45 degrees; that he did not believe that his car moved a foot as the result of the impact, and while there was some damage done to his car, he was in no way injured; that he did not notice where his car was with reference to the sidewalk running north and south on the east side of Fourth street, and could not tell how much distance there was between the back of his car and the center of Fourth street extending south from Main street; that the Ford car was about fifteen or twenty feet distant when he first saw it. He marked a cross on the plat, designated by the letter J, as the spot in the intersection where the left front wheel of his car was at the time of the impact, and a cross designated by the letter O on the plat was marked by him as a witness, as the location of the defendant's car when he first saw it. He was asked the question as to the speed at which the Ford automobile was traveling and answered: “I couldn't judge the speed.” One Alfred Bienfang was operating a filling station at the southwest corner of the intersection between Main street and Fourth street, running south, and testified that he saw the defendant's car in Fourth street coming south; that it did not stop for the stop sign; that he did not notice the speed of the Ford car. Elgin Bienfang resided in a house located in the southeast corner of the intersection of Main street and Fourth street, running south. He testified:

“I was in the house putting my boy to bed and was seated at an open window where I could look right up North 4th Street. I saw Armstrong's car as he came down North 4th Street. It did not come to a complete stop before passing the stop sign, or before coming into G Avenue. They were coming south. * * * They just swung to the right and started south again as long as I could see them. * * * As he got to the stop sign, he slowed up and increased speed after he started again. * * * The last I seen him he was increasing speed. * * *

Q. When did you first know that an accident had occurred? A. When I heard the crash.

Q. How long after you saw, or after you last saw the Armstrong car was it before you heard the crash? A. Just about a couple of minutes.

Q. A couple of minutes? A. Yes, I heard the crash and got right out there and saw the position that the cars were in right after the accident happened. The point of contact of the two cars was right in line with the sidewalk running north and south on the west side of my house. The Buick car was facing east; the Ford car was facing southwest. * * *

Q. And you saw him (Armstrong) from the time that he was the other side of the stop sign until he reached the center of the street? A. Yes sir. * * *

Q. Where was the Armstrong car at the time that it was first turned in the direction where, in which it was going at the time of the accident? A. In the center of the street.

Q. How fast was the Armstrong car traveling at the time of the accident? A. About 20 miles an hour. * * *

Q. In what direction was Armstrong looking at the time of the accident? A. He was looking straight ahead. * * * It wasn't dark, I could see a man's eyes across the street.”

Another witness testified that the accident happened south of the center of Main street and east of the center of Fourth street, running south from Main street.

The foregoing constitutes all of the material testimony upon which we must determine whether it is sufficient to support a verdict of a jury that the defendant's conduct was reckless within the meaning of the law.

[2][3][4][5] It will be noted that, while there is evidence that the defendant slowed down, yet he failed to make a complete stop at the stop sign before entering the intersection. The place in the intersection, where the testimony tends to show that the collision occurred, was five or six rods from the stop sign. It is apparent that this failure, if any, on the part of the defendant, was not and could not have been the proximate cause of the collision. Whatever, if any other, infraction of our statutory law may be shown by the testimony, they are such as to make only a prima facie case of negligence against the appellee. McDougal v. Bormann (Iowa) 234 N. W. 807;Sergeant v. Challis (Iowa) 238 N. W. 442;Riepe v. Elting, 89 Iowa, 82, 56 N. W. 285, 26 L. R. A. 769, 48 Am. St. Rep. 356. Were it not for the fact, as disclosed by the testimony, that the collision occurred south of the center of Main street, and east of the center of the south extension of Fourth street, it could hardly be claimed that there is evidence of negligence resulting in the collision. While, if the action were such as could be founded on negligence, the jury might be allowed to find, from the evidence, that the defendant was guilty of negligence, that is, that he failed to exercise such care as an ordinarily careful and prudent person would have exercised under the same circumstances, yet that does not solve the problem. This action is founded upon recklessness, which means more than negligence. It means proceeding without heed of, or concern for, consequences. See Siesseger v. Puth (Iowa) 239 N. W. 46. In order for conduct to be reckless within the meaning of the law, it must be such as to manifest a heedless disregard for or indifference to the rights of others. We find nothing in the record hereinbefore set out which evinces a heedless disregard of the rights of Neessen, who was seated by the side of the driver. We do not think that it could reasonably be said from the evidence that the defendant's conduct, though negligent it may have been, was such a heedless disregard of the rights of Neessen as to...