Petersen v. Detwiller, 42508.

• Decision Date: 23 June 1934
• Docket Number: No. 42508.,42508.
• Citation: 255 N.W. 529,218 Iowa 418
• Parties: PETERSEN v. DETWILLER et al.
• Court: Iowa Supreme Court

218 Iowa 418

255 N.W. 529

PETERSEN

v.DETWILLER et al.

No. 42508.

Supreme Court of Iowa.

June 23, 1934.

Appeal from District Court, Audubon County; Earl Peters, Judge.

An action for damages under section 5026-b1 of the 1931 Code. The facts appear in the opinion. A verdict was directed for the defendants. Plaintiff appeals.

Affirmed.

Chas. S. White, of Audubon, for appellant.

Miller, Miller & Miller, of Des Moines, and Graham & Graham, of Audubon, for appellees.

ANDERSON, Justice.

This is an action for damages brought in behalf of Lu Verne Petersen, a minor by his next friend, grounded upon section 5026-b1 of the 1931 Code. The section mentioned is as follows: “ Liability to Guest. The owner or operator of a motor vehicle shall not be liable for any damages to any passenger or person riding in said motor vehicle as a guest or by invitation and not for hire, unless damage is caused as a result of the driver of said motor vehicle being under the influence of intoxicating liquor or because of the reckless operation by him of such motor vehicle.”

The facts as disclosed by the record are not in serious dispute. It appears that Allan Detwiller, one of the defendants and appellees, was, on the 23d day of June, 1931, about 1 o'clock in the afternoon, driving an oil truck down what is known as the Anderson hill on the highway about four miles east of Audubon and was traveling toward Audubon. The plaintiff Lu Verne Petersen was a guest riding in the cab of the car with Detwiller. It is fair to assume that the highway in question going down the hill had been somewhat cut up by reason of truck traffic thereon, and that it had recently been dragged, partly filling the ruts, in some places full and in others very little. Detwiller, the driver, testifies that he might have been going twenty-five or thirty miles an hour when he came to the top of the hill; that the first part of the hill was not rough or rutted to any extent, and that he did not experience any difficulty in passing over it; that as he passed over the second part of the hill a front wheel of the truck hit some silt in the road and the truck began to sway, that he tried to right it but was unable to do so, and after swaying from one side of the road to the other two or three times it upset; that the truck traveled ten or twelve rods during the time it was swaying and he was attempting to right it and gain control, before it turned over. The boy was injured when the truck turned over, losing a part of one of his hands. The only witness, other than Detwiller, who saw the accidentand testified in reference thereto, was one Jorgensen, who was driving on the same road toward the oil truck. He says he noticed the oil truck swaying from side to side as it came over and down the hill, and that it was traveling thirty-five or forty miles an hour toward him; and that it continued at such a speed until it turned over near the bottom of the hill. The testimony of this witness in reference to the speed of the truck is not very convincing. It is difficult, if not impossible, to even approximate the speed of a vehicle moving directly toward a witness nearly a quarter of a mile away. After the accident Detwiller said to Jorgensen and Henry Petersen, the father of Lu Verne, that he guessed he was driving a little too fast. Detwiller was familiar with the highway where the accident occurred, but had not traveled over it that day prior to the accident. He had been over the road a few days before, however. There is no dispute in the evidence of Detwiller's testimony that the truck hit some silt in the road and skidded and got out of control of the driver, Detwiller. The truck was carrying about one-half load of gas at the time of the accident and there is testimony that this would have a tendency to accelerate the side sway of the truck under the conditions just prior to the accident. The foregoing includes practically all of the material testimony in the record at the time both parties rested and the defendants made a motion for a directed verdict. This motion was sustained, and the plaintiff appeals.

There are several attempted assignments of error, but appellant abandons all of them except one. Appellant says in his brief and argument: “In the strictest sense there is but one real question for determination and that is, was there sufficient evidence to take the case to the jury? If so, the court erred in directing the verdict and if there was not sufficient evidence on the question of recklessness the verdict should be upheld.”

The concession above quoted was no doubt induced by the appellee's attack upon the assignments of error as not being in conformity with rule 30 of this court, and while none of the assignments are specific and...