Olson v. Hodges

• Decision Date: 27 July 1945
• Docket Number: No. 46716.,46716.
• Parties: OLSON v. HODGES.
• Court: Iowa Supreme Court

236 Iowa 612
19 N.W.2d 676

OLSON
v.
HODGES.

No. 46716.

Supreme Court of Iowa.

July 27, 1945.

Appeal from the District Court, Woodbury County; Ralph W. Crary, Judge.

Plaintiff, as the guest of defendant, brought this action at law against the latter, to recover damages for personal injuries received because of the alleged recklessness of defendant in the operation of his automobile. There was a judgment for plaintiff on a verdict of the jury. Defendant appealed from the judgment and from other adverse rulings. The judgment is reversed, and remanded with instructions to enter judgment for appellant.

[19 N.W.2d 677]

Gill & Gill, of Sioux City, for appellant.

E. O. Bundy and Robert B. Pike, all of Sioux City, for appellee.

BLISS, Justice.

Plaintiff, in his petition, prayed judgment against the defendant for $15,000. Defendant, in answer to the petition, admitted

[19 N.W.2d 678]

that plaintiff was injured while riding in defendant's automobile as the latter's guest, but denied that any injuries received by plaintiff were caused by any recklessness in defendant's operation of the automobile. The answer also alleged assumption of the risk of riding in the automobile on said highway. Under the instructions of the court the maximum verdict recoverable by plaintiff was $12,587.95. The maximum recovery on each item of damage was $292.95 for hospital and medical expenditures, $880 for earnings lost, $5000 for past pain and suffering, and $6415 for disability and loss of earnings in the future. The legs of plaintiff were broken below the knees. The verdict of the jury and judgment thereon was for $1200. Defendant's motions for a directed verdict and for judgment notwithstanding the verdict, based upon the ground that the evidence did not establish recklessness on the part of defendant, and upon the ground that plaintiff knew the road and weather conditions and assumed the risks incident to the operation of the automobile, were overruled.

Appellant's assignments of error were bottomed upon the rulings on these motions, and upon the 14th instruction.

I. Automobile-guest cases, under section 5037.10, Code of 1939, have been before this court many times, since its enactment in 1927. The provisions of the statute and the controlling principles of law as repeatedly stated by this court are well known. The difficulty lies in the application of those principles to the varying facts in each case. Because the cases differ in facts, there is no profit in the dissection of precedents.

The injury occurred on Sunday, March 5, 1944. About 3 o'clock in the afternoon plaintiff, 50 years old, and Mr. Salisbury, a friend of many years, went to the Union Club in downtown Sioux City. The defendant, whom the plaintiff had met a few times during the previous year, was there and was introduced to Salisbury. They had a couple rounds of beers and a drink of liquor each from a half-pint bottle of Salisbury's. Upon learning that defendant was going to drive to Denison, Salisbury proposed to him that he take his juke-box in the car to Denison as he had no place to keep it. Defendant finally agreed to take it, if it could be carried in his Tudor Chevrolet. The car was parked just outside the Club and they drove about a block along the street to the place where the instrument was and loaded it into the car. The back of the right half of the front seat was leaned forward and the base of the juke-box was placed against the floor and back seat and the rest of the instrument extended forward on the reclining back of the front seat. It occupied the entire right side of the car. Defendant drove the car, and plaintiff sat just behind him in the rear seat and Salisbury was seated to his right and against the juke-box. They were quite crowded in the back seat.

Snow began falling before noon and when they started the precipitation was about half snow and half rain. There was from an inch to several inches of slush on the streets. There were a few small spots of ice under the slush. These were the weather and road conditions throughout the afternoon, and were, of course, apparent to each of them, except that the spots of ice were not noticeable. Defendant drove the car from downtown out through East Morningside to the end of the street car line and entered State Highway 141, a paved road leading to Denison, about 75 miles to the southeast. It was shortly before 4:00 PM. when they started. The injury occurred about 5:00 P.M., or a little before, about 10 or 12 miles from the business section of Sioux City. Everything proceeded well as they drove through the city and beyond Morningside until within 5 or 6 miles of the place of injury. The highway is somewhat winding and proceeds through a slightly rolling country. There are a number of rather sharp curves in the road. The plaintiff and Salisbury testified for plaintiff respecting the trip. Plaintiff testified: ‘So we got in the car and moved down on Fourth Street and went down till we hit 141; and when we went up there everything was going along pretty good till we got to the main highway, and then is when he got to driving pretty fast and I was afraid anyway, and I couldn't stand it anymore, and I asked him to slow down, asked him if he wasn't driving too fast that way on this highway that was slushy; and he went on; and he didn't pay any attention; and so I asked him again-I was getting a little scared; and a couple of times he drove up on the shoulder of the pavement, and when he came off it again the car began to sway; and I was getting pretty scared; and so it went on for a while and he wouldn't slow down; and he said he didn't want

[19 N.W.2d 679]

to be all night going down to Denison and back; and he was travelling pretty fast and he got up on the shoulder, and it was then he got to swaying and it never did come off and we hit the bridge then. It was around 4:30. The street was awful slippery, slushy and winterish, there was no snow on the pavement, it was icy. I should say Hodges was going around thirty miles, as near as I could guess. * * * There are quite a few curves in this road after you get out a ways. It looked to me like the car was out of control as he couldn't get it under control after it started swaying after he got off the shoulder. * * * When it was swaying just before it went into the bridge, why it was out of control then, and the rear end of the car swung in and hit the left abutment of the bridge, and that was the side I was sitting on, and it bounded from that side over to the other side and hit the other side and stopped there. I imaging that I called his attention to the way and manner in which he was driving not less than three times. He didn't heed my desire.’

The first time he told defendant to drive more slowly was about 4 or 5 miles out of Morningside and about the same distance from the place of the accident. The second time that he told the defendant he was scared and to not drive so fast was about a mile or two miles from the place of the injury. And just before the accident: ‘I just asked him if he wouldn't please slow down, that I was getting scared. The pavement is too slippery for the speed you are going.’ Answering a question as to whether the car was out of control at any time before it struck the bridge, the plaintiff testified: ‘Not clear out, but it swayed; and then he got up on the shoulder a few times, and he seemed to have a heck of a time getting it in control again, but he always did till-probably a hundred feet from the bridge, the car skidded or twisted around and struck the bridge, and I would figure he was driving around thirty miles.’ On cross-examination he testified:

‘I don't think he was driving quite as fast as thirty miles the first few miles after we left Morningside but just as soon as we got away from the street car line out of Morningside he started driving that fast. I hand't said anything to him in Morningside about driving too fast. * * *

‘Q. Did it slip any place from Morningside down to just before you got to the place of the accident? A. Well, it never got off the pavement, but the back end of the car would skid once in a while. It slipped several times before we got to the place of the accident. The first place was four of five miles this side of the accident.’

The record fairly shows that, when he testified that the car went up on the shoulder, he did not mean the dirt shoulder, but meant the curved cement shoulder constructed to carry the water off.

Salisbury testified:

‘It was snowing and rain, or snow and rain together, and it was awful wet. The paving on 141 was wet and slippery in places where the cars hadn't worn off the snow and slush as they went along. There was a little ice in spots. It was more like rain and...