Neyens v. Gehl

• Decision Date: 17 October 1944
• Docket Number: 46531.
• Citation: 15 N.W.2d 888,235 Iowa 115
• Parties: NEYENS v. GEHL et al.
• Court: Iowa Supreme Court

15 N.W.2d 888

235 Iowa 115

NEYENS v. GEHL et al.

No. 46531.

Supreme Court of Iowa

October 17, 1944

John J. Kintzinger, of Dubuque, and Hogan &amp Less, of Cascade, for appellant.

Kenline Roedell & Hoffmann, of Dubuque, and Herrick, Sloan &amp Langdon, of Des Moines, for appellees.

MILLER Justice.

Plaintiff's petition asserted that on May 30, 1942, plaintiff was riding as a guest in an automobile owned by defendant Dorothy Gehl and operated by her brother defendant Fabian Gehl; while operating said automobile over a narrow, twisting, graveled road it was run into the side of a bridge on the highway then into the ditch, turning over and injuring plaintiff. The allegations of recklessness were as follows: 'That the injuries and resulting damages to plaintiff, John Neyens, were caused by reason of the reckless operation of the automobile operated by Fabian Gehl at the time and place in question in that said Fabian Gehl heedlessly failed to have said car under control, in driving said car at an excessive rate of speed in approaching and traversing a bridge, at which time the operator of said car stooped over and reached to pick up a cigarette on the floor, without keeping a proper lookout and reducing the speed of said car, running into and crashing through the bridge railing and thence into a ditch; in failing to have said car under control and reducing the speed to a reasonable and proper rate upon approaching and traversing a bridge, at which time the operator of said car stooped over and reached to pick up a cigarette on the floor without reducing the speed of said car and running into and crashing through the railing on the side of the bridge and then into a ditch.'

The foregoing allegations were challenged by defendants as being insufficient to constitute a case of recklessness. The court overruled the motion. Plaintiff then amended his petition and alleged as follows: 'That the operator of defendants' car, in addition to the specifications of recklessness set forth in the prior pleadings herein, was reckless at the time and place in question in driving said automobile at a high and excessive rate of speed, without keeping a proper lookout, without having said automobile under control and in failing to reduce the speed of said automobile to a reasonable and proper rate when approaching and traversing a bridge in the public highway.'

The foregoing allegations were challenged by defendants. At the hearing, the court stated: 'The court is unable to tell from the manner in which it is written whether that purports to be one single ground of recklessness.' The following conversation then took place:

'Mr. Kintzinger: In drawing this second amendment, we intend to have only one ground of recklessness in the separate charges as set forth herein; these separate parts are not separated by semi-colons, but by commas, and it was our intention to join them together and have but one ground of recklessness.

'The Court: In considering this matter the court is to regard the contents of that paragraph in that light.

'Mr. Kintzinger: That is right.

'The Court: That is one single ground of recklessness with a combination of elements?

'Mr. Kintzinger: That is right, and that is what we are claiming for.'

The court overruled defendants' motion. The cause proceeded to trial. At the close of plaintiff's evidence, defendants made a motion for a directed verdict, one of the grounds of which was: 'Plaintiff has failed to prove any recklessness on the part of said defendant driver, or any recklessness which in any manner could be charged against the defendant owner, which was the proximate cause of plaintiff's alleged injuries and damages.' The motion was overruled. At the close of all the evidence, the motion was renewed and again overruled. The court then announced: 'As to the submission of the element of recklessness to the jury the court will submit but one specification of recklessness which will combine the three elements 'speed, lack of control, and failure to maintain a proper lookout'.' The jury returned a verdict for defendants.

On June 17, 1943, plaintiff filed a motion for a new trial, asserting that the court erred in a certain ruling upon the introduction of plaintiff's evidence and in the giving of various instructions. The motion was overruled. The court's ruling was quite extensive. At the outset thereof, the court stated:

'The jury in this case returned a verdict in favor of the defendants. At the conclusion of all the evidence and prior to the submission of the case to the jury, the defendants made a motion for a directed verdict which raised a serious question in the court's mind as to whether the matter should be submitted to the jury, and which question was finally decided in the affirmative. Now, after reviewing the transcript of all the evidence, it is apparent that a verdict should properly have been directed in favor of the defendants, and, therefore any errors, which might have occurred in the instructions would be without prejudice.'

Plaintiff has appealed to this court, assigning as error the one certain ruling on the evidence and the giving of various instructions which were challenged in the motion for new trial. It will be noted that trial was had before the new rules of civil procedure became effective.

I. The court's holding that, if the defendants' motion for directed verdict should have been sustained, any error in the instructions would be without prejudice, was clearly sound. Paulson v. Hanson, 226 Iowa 858, 863, 285 N.W. 189; Comparet v. Wm. H. Metz Co., 222 Iowa 1328, 1330, 271 N.W. 847; Mulroney Mfg. Co. v. Weeks, 185 Iowa 714, 717, 171 N.W. 36, 37. We are also of the opinion and hold that the court was right in its final determination that defendants' motion for a directed verdict should have been sustained.

The accident herein occurred during the afternoon of May 30, 1942. It was a bright sunshiney day. Defendant Fabian Gehl, 17 years old, was driving a 1941 four-door Plymouth with hydraulic brakes. Jacqueline Kauder, age 18, was riding in the front seat with him. Plaintiff John Neyens, age 18, was in the middle of the back seat. On his left was Peggy Tallman, about 18, and on his right John McQuillen, 16 years old. They were traveling on a graveled road, 14 to 16 feet wide, in a westerly direction approaching a wooden bridge, 16 feet 11 inches wide and 16 feet 7 inches long with a wood railing on each side 2 feet 11 inches high. Their approach to the bridge was described by plaintiff as follows:

'Q. All of the parties in the car, you were all visiting together I suppose as young folks will, John? A. Yes.

'Q. You say that Fabian asked you for a cigarette? A. Yes.

'Q. It was you, yourself, who lighted the cigarette for him? A. Yes.

'Q. You handed the cigarette up to the young lady in the front seat? A. Yes.

'Q. Up to this point there had been no difficulty with the car at all had there? A. It had swayed some.

'Q. Nothing that caused any comment or anything like that? A. No.

'Q. Nothing out of the ordinary up to this point? A. No.

'Q. You were the one that lighted the cigarette? A. Yes.

'Q. And you are the one who passed it up? A. I passed it to the girl, yes.

'Q. When Fabian had the cigarette in his hand, I think you said it dropped? A. Yes.

'Q. And as he reached over to pick it up the car swayed, is that correct? A. Yes, and went into the ditch.'

The testimony of the other witnesses is in substantial accord with that of plaintiff about the cigarette being lighted by plaintiff, handed to Miss Kauder and then dropped in the process of being handed by her to Gehl, with Gehl reaching down for it causing the left wheels of the car to get off the highway with the result that the car struck the south railing of the bridge, turned over and stopped upside down in the ditch about 20 feet from the east piling of the bridge. As to the other details of the accident the testimony is to some extent in conflict. Of course, we must view it in the light most favorable to the plaintiff.

The jury was warranted in finding that the incident with the cigarette occurred when the car was over 100 feet from the bridge and that the car traveled for at least 100 feet with its right wheels on the highway and its left wheels off the highway. This conclusion is supported by the testimony of various witnesses concerning tracks observed after the accident occurred. Leo Green testified as follows: 'These tracks led right up to this abutment, the tracks straddled, one wheel in the ditch and one wheel in the road right on down and it scraped the piling. I traced the tracks back to where they went off the road, they were on the south side of the road, they extended back east 100 feet from where they went into the ditch.' Frederick Reiniets testified: 'The marks extended back into the ditch or little hollow, 100 feet or more.' R. H. Helgers testified: 'On the left hand side of the road I saw tracks back from the bridge in the grass, on the south side of the road back better than 100 feet east of the bridge in the gutter. * * * There were marks back on the left hand side of the road, marks in the grass extending back about 100 feet. You could see where they put the brakes on drug along in the grass a ways.' Robert Kurt testified: 'I walked up along the road and saw some tracks in the ditch leading up back onto the road over 100 feet from the bridge.'

The bridge was approached down a gradual grade. The testimony of the witnesses and the photographs introduced by both parties show that the road was straight for a distance of approximately 400 to 500 feet as the car approached the bridge. The car had been driven on the graveled road for about one mile before the bridge was struck. Plaintiff testified:

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