Nesci v. Willey

• Decision Date: 06 March 1956
• Docket Number: No. 48882,48882
• Citation: 247 Iowa 621,75 N.W.2d 257
• Parties: Louis NESCI, Plaintiff-Appellant, v. Norris WILLEY, Andrew Murphy & Son, Inc., a Corporation, and John A. Schroder, Defendants-Appellees.
• Court: Iowa Supreme Court

Page 257

75 N.W.2d 257

247 Iowa 621

Louis NESCI, Plaintiff-Appellant, v. Norris WILLEY, Andrew Murphy & Son, Inc., a Corporation, and John A. Schroder, Defendants-Appellees.

No. 48882.

Supreme Court of Iowa.

March 6, 1956.

Warren C. Schrempp, Omaha, Neb., and Richard F. Stageman, Council Bluffs, for appellant.

Ross, Johnson, Northrop, Stuart & Tinley, Council Bluffs, for Norris Willey and Andrew Murphy & Son, Inc., appellees.

Peterson, Smith, Peterson, Beckman & Willson, Council Bluffs, for John A. Schroder, appellee.

LARSON, Chief Justice.

Sunday evening, August 24, 1952, was clear and pleasant and the highways were firm and dry approximately two miles east of the "South Omaha bridge" in Pottawattamie County, Iowa, but according to the record it was a bad day for good Samaritans. The plaintiff was driving his car easterly on Highway 275, taking a lady acquaintance to Council Bluffs, when he ran out of gasoline. He was just a short distance east of a right-angle intersection between a dirt road extending north and south and Highway 275, which runs in an east-west direction. As he and his passenger started to walk to a gas station about four blocks toward the east, defendant Willey, driving a DeSoto automobile owned by his employer Andrew Murphy & Son, Inc., stopped and offered plaintiff and his companion a lift. Willey was accompanied by his wife and four small children and was out for a ride before going to a nearby drive-in theater. After plaintiff procured some gasoline, defendant Willey took them back toward the west, passed plaintiff's car, and in attempting to turn around at the aforementioned dirt road intersection, was struck by a car owned and operated by defendant Schroder, then being driven easterly on Highway 275.

Plaintiff's action at law against defendant Willey and the car owner, Andrew Murphy & Son, was brought under section 321.494, Code of Iowa 1954, I.C.A., otherwise known as the "guest statute", claiming the collision was caused by the reckless operation of the automobile by Willey, and also claiming that defendant Schroder was negligent in the operation of his car which, jointly and concurrently with defendant Willey's reckless operation of his vehicle, was the proximate cause of the collision and the sole cause of his injury.

In directing a verdict for defendants Willey and Murphy & Son at the close of all testimony, the court ruled that the evidence was insufficient to prove recklessness. As to these defendants, that ruling presents the only question for us to consider.

In directing a verdict for defendant Schroder at the close of all testimony, the court ruled that the evidence was insufficient to carry plaintiff's burden to show any of the claimed specifications of negligence. This ruling we are also asked to review.

I. First we consider the cause stated against defendants-appellees Willey and Murphy & Son. In their pleadings appellees admit a guest-host relationship between appellant and themselves and concede that appellee Andrew Murphy & Son would be liable for the acts of Willey in operating its automobile. Appellant concedes in his brief and argument that the only substantial issue presented by this appeal, so far as these defendants are concerned, is whether the evidence adduced at the trial, when viewed in the light most favorable to plaintiff, establishes a jury question as to recklessness on the part of these appellees.

We are not disposed again to go into the many able opinions handed down by this court on what constitutes recklessness under the Iowa law. We have discussed this statute and construed it many times since Siesseger v. Puth, 213 Iowa 164, 239 N.W. 46, the latest cases being Harvey v. Clark, 232 Iowa 729, 6 N.W.2d 144, 143 A.L.R. 1141; Olson v. Hodges, 236 Iowa 612, 19 N.W.2d 676; Schneider v. Parish, 242 Iowa 1147, 49 N.W.2d 535; Christensen v. Sheldon, 245 Iowa 674, 63 N.W.2d 892; Goetsch v. Matheson, 246 Iowa 800, 68 N.W.2d 77. In the case of Olson v. Hodges, supra, at page 621 of 236 Iowa, at page 681 of 19 N.W.2d, Judge Bliss reviews our prior decisions on that issue and says in all such cases the issue before us is whether there was sufficient evidence of defendant's operation of the car to establish a prima-facie case of "recklessness", citing Welch v. Minkel, 215 Iowa 848, 853, 246 N.W. 775. The answer, he said, "must be reached by consideration of the evidence, the statute, and our decisions construing it."

To constitute recklessness under the guest statute, conduct must be more than negligent and must manifest a heedless disregard for or indifference to the consequences or the rights or safety of others. It, of course, need not involve moral turpitude or wanton and willful misconduct. Harvey v. Clark, supra. There must be an awareness, actual or constructive, of the unusual danger presented by the circumstances, and also a manifestation of "no care." Schneider v. Parish, supra. We have frequently and consistently held that conduct arising from mere inadvertence, thoughtlessness or error in judgment, is not reckless. Harvey v. Clark, Olson v. Hodges, and Schneider v. Parish, all supra, and cases cited therein.

Appellant relies principally upon his own testimony, and of course the rule is so well recognized that it requires no citation of authority that, in passing upon a defendant's motion for a directed verdict, all of plaintiff's evidence must be accepted as true in the light most favorable to plaintiff. It should also be given the strongest inferences reasonably deducible therefrom. White v. Center, 218 Iowa 1027, 254 N.W. 90. Plaintiff testified that after leaving the gas station, defendant Willey turned left on the highway and traveled west. He said: "When we went back * * * past my car, I told him that he could let me off across from my car and he told me that he would go down and turn around and * * he proceeded down the highway", to the intersecting dirt road. "As Mr. Willey approached the intersection of this dirt road on the curve (described as a long curve) he pulled off to the right of the highway and pulled over as close to the post as he could." Plaintiff further stated defendant Willey did not stop before turning left and re-entering onto the highway, but that he started to make U-turn. On cross-examination he said: "Prior to the accident, Mr. Willey had been driving on his own side of the highway at a normal rate of speed." When Willey turned the car toward the edge of the pavement plaintiff could see down the highway to the west "about a quarter of a mile." He saw the approaching automobile of defendant Schroder "about a block away." He said: "I continued to watch the Schroder car" as "the Willey car continued to move out on the highway" at five miles per hour. Willey's car, plaintiff said, was about halfway out on the highway when he "hollered, 'Look out.' " Schroder's car was then "a half block away. * * * it did not slow down", and as Willey's car kept on going across the highway it was struck at the right front door, swinging the Willey car around facing west just off the south side of the paving. The Schroder car stopped on the highway facing east about twenty feet east of the Willey car. Just before the impact plaintiff turned his back to the door and covered his face. On redirect examination plaintiff said:: "I hollered just as soon I realized there was some danger." On cross-examination he said: "I hollered because I saw the car coming. It was not then 15 feet away. I hollered to warn the driver of an impending accident." Plaintiff also testified the highway paving at that point was about 18 feet wide, Willey's car was 17 or 18 feet long, and that Highway 275 is higher on the north than on the south, it being on a long elevated curve; that there was much heavy traffic consisting of passenger cars and stock trucks going to and from Omaha on Highway 275 at that time. The collision occurred about 7 P.M. and, though it was still daylight, it was fast approaching dusk. Plaintiff further denied he gave a statement to an Omaha lawyer that he did not see the Schroder car before the collision, or that Willey had stopped prior to re-entering the paved portion of Highway 275 from the north.

The trial court denied defendants' motion for a directed verdict at the close of this testimony, explaining it was done so that plaintiff might have the benefit of any other evidence tending to support his allegations. However, defendants' testimony was that Mr. Willey had pulled off the highway on the north side of the intersection and stopped before swinging around to the south for a crossing of Highway 275. Willey testified he stopped and straightened the car around facing south, intending to cross to the south side of the intersection, turn around on the dirt road, and re-enter Highway 275 by making a right turn. The physical evidence of the result of the impact seems to substantiate that position, for his car was not hit from behind, pushed to the east, or thrown into the north line of traffic. It was pushed around facing west almost entirely off the highway on the south side. Defendant testified he stopped before entering the highway on the south side. Defendant testified he stopped before entering the highway, permitting traffic to go by before trying to make a U-turn and said he failed to see defendant Schroder's car until just before the impact, when he tried to speed up and get clear. This story was substantiated by his wife and by the Schroders. Willey denied any warning by anyone before the collision, but said there were some outcries afterward. In the front seat, with Willey and his wife, was one child. In the back seat the plaintiff sat on the right side, the lady with him on the left, and three children between them. In Schroder's car were the defendant Schroder, his wife and child. His testimony was that when he saw defendant Willey pull off the highway he slowed down, and when he saw him stop he resumed his...