Pieper v. Harmeyer

Decision Date12 November 1975
Docket NumberNo. 2--56966,2--56966
PartiesSusan A. PIEPER, a minor, by Greg Pieper, Her Father and Next Friend, and Greg Pieper, Individually, Appellants, v. Arnold H. HARMEYER et al., Appellees.
CourtIowa Supreme Court

Sidney E. Drake, Centerville, for appellants.

Fehseke & Fehseke, by R. L. Fehseke, Fort Madison, and Hirsch, Wright, Link & Adams, by John G. Link, Burlington, for appellees.

Considered en banc.

RAWLINGS, Justice.

Actions arising from a rural road multiple vehicle collision resulted in judgment on directed verdicts for two defendants under the guest statute, and judgment on jury verdict for the other two defendants on negligence counts. Plaintiffs appeal. We affirm in part, reverse in part.

April 2, 1972, report of a motor vehicle collision on a secondary gravel road was received by Lee County sheriff's office. Defendant Dan E. West (West), a deputy, responded to the call in a patrol car owned by defendant sheriff Don E. Arnold (Arnold).

At the accident scene West observed what was later disclosed to be a badly dented automobile owned by one Menke, parked on the west side of the roadway, near the bottom of a hill which inclined about 300 feet to the north. The road was 23 feet wide, with no shoulders, being flanked on each side by ditches. West parked the patrol car on the east side of the highway opposite Menke's disabled vehicle. Deputy West testified the flashing lights atop the patrol car were turned on immediately after it had been stopped. He then went to the Menke car in order to determine whether anyone had been injured. Finding no injuries, he inquired as to identity of the other accident-involved driver. Upon being advised that Janet Groene was the other party, West asked for her driver's license and car registration. She stated they were in her automobile which had been parked near a farmhouse at the top of the aforesaid hill. Miss Groene then walked to her car, drove it back down the hill and parked it behind the Menke vehicle. Thereafter, a north bound pickup truck stopped about 30 feet behind the patrol car on the east side of the road.

Minutes later an automobile driven by John Frary approached from the south, slowing down to pass between the vehicles stationed on both sides of the road. At about the same time, defendant Jon Harmeyer, driving a car owned by his grandfather, defendant Arnold H. Harmeyer, came over the crest of the north hill. Plaintiff Susan Pieper, a minor, was in the front passenger seat. Upon seeing four vehicles on either side of the road and the Frary car approaching between them, Jon applied his brakes. The automobile skidded downhill 280 3 where it struck the left rear fender of the patrol car, then caromed back to the middle of the road and hit the Frary vehicle head-on. The latter vehicle was pushed backward into the parked pickup truck. The Frary and Harmeyer cars then spun around, coming to rest approximately 29 4 south of their original impact point.

There is some conflict in the record as to speed of the Harmeyer car as it came over the hill crest. Estimates range from 45 to 75 miles per hour.

The accident occurred at approximately 6:50 p.m. The locus speed limit was 60 m.p.h.

Earlier in the afternoon, Harmeyer had consumed 'one can and maybe a little more of another can's of beer after school.

Plaintiff Susan Pieper sustained rather extensive injuries. At trial time, her face was noticeably scarred. She seeks $75,000 damages and her father, in his own behalf, asks $15,000.

September 10, 1973, the case proceeded to trial on these counts of plaintiffs' petition, as amended:

I. Susan Pieper (by her father, Greg Pieper) against the Harmeyers for recklessness and driving while under the influence of intoxicating liquor, in violation of Iowa's 'guest statute', Section 321.494, The Code 1971.

III. Greg Pieper, individually, against the Harmeyers for recklessness as alleged in Count I.

IV. Susan Pieper (by her father) against defendants Arnold and West for negligence in improperly parking the patrol car and failing to warn other drivers of a dangerous condition in the road ahead.

V. Greg Pieper, individually, against defendants Arnold and West for negligence alleged in Count IV.

At close of plaintiffs' case, trial court sustained a directed verdict motion for the Harmeyers. Trial continued against Arnold and West on counts IV and V. Their defense is premised on the theory the patrol car was operating in response to an emergency call; plaintiff Susan Pieper was contributorily negligent; and sole proximate cause of the accident was defendant Jon Harmeyer's negligence.

The case against Arnold and West was submitted to the jury on allegations noted above, with verdict being returned for said defendants. Plaintiffs moved for a new trial. With regard to Susan this motion was overruled. It was, however, sustained as to her father on count VII, upon his separate derivate cause of action against the Harmeyers for negligence. See Irlbeck v. Pomeroy, 210 N.W.2d 831, 833--834 (Iowa 1973).

In support of a reversal on the directed verdict for defendants Jon and Arnold Harmeyer, plaintiffs contend trial court erred:

(1) in directing a verdict for said driver-owner (hosts) on the ground that plaintiffs failed to generate a jury question on the recklessness issue;

(2) in holding, as a matter of law, a guest may not recover from the hosts (driver and owner) on proof of Ordinary negligence by the driver.

These contentions will be considered in reverse order.

As to the jury verdict for defendants Arnold and West, plaintiffs assert trial court erroneously instructed the jury regarding 'special privileges' accorded authorized emergency vehicle drivers when responding to an emergency call.

I. Plaintiffs' claim to the effect our guest statute, § 321.494, is unconstitutional must be summarily rejected since this issue was never raised below. As stated in Wolfs v. Challacombe, 218 N.W.2d 564, 570 (Iowa 1974):

'Ordinarily, issues not raised in the trial court, including constitutional questions, cannot be effectively asserted the first time on appeal. Furthermore, the constitutionality of a statute may not be considered as a basis for reversal where the question was not raised in the lower court. State v. Russell, 216 N.W.2d 355, 356 (Iowa 1974). Since plaintiff's contention in this respect was not urged in the trial court it presents nothing for review in this court.'

See also Hale v. Taylor, 192 Neb. 298, 220 N.W.2d 378, 380 (1974).

The above assignment is not entertained.

II. As aforesaid, plaintiffs assert trial court erred in directing a verdict for the driver and owner of the Harmeyer vehicle on the ground that plaintiffs had failed to create a jury question on the recklessness issue.

Where, as here, a guest brings an action alleging recklessness, our function on appeal from a directed verdict for the owner-driver hosts has been thus stated:

'(I)t is not the court's duty to determine whether defendant was reckless, but we are required to examine the evidence to determine whether there is sufficient evidence ufrom which a jury might reasonably draw an inference of reckless operation.' Vipond v. Jergensen, 260 Iowa 646, 649, 148 N.W.2d 598, 600 (1967).

In applying this standard we need only consider the evidence favorable to plaintiffs, whether or not contradicted, in determining whether a jury question was generated. See Vogel v. Reeg, 225 N.W.2d 132, 134 (Iowa 1975); Iowa R.Cip.P. 344(f)(2).

There is one final element--perhaps the most important--in the test to be applied: 'The evidence of recklessness * * * Must be substantial before a jury question is generated.' (Emphasis supplied). Vogel v. Reeg, supra.

III. We also said in Vogel, supra:

"Reckless operation of a motor vehicle as used in our 'guest statute', section 321.494, Code 1962, means more than negligence, more than want of ordinary care. It means, proceeding with no care coupled with disregard for consequences, the acts must manifest a heedless disregard for or indifference to the rights of others in the face of apparent danger or so obvious the operator should be cognizant of it, when the consequences of such actions are such an injury is a probability rather than a possibility. Recklessness may include willfulness or wantonness, but if the conduct is more than negligence it may be reckless without being willful and wanton. The elements of recklessness are: (1) No care coupled with disregard for consequences, (2) there must be evidence of defendant's knowledge, actual or chargeable, of danger and proceeding without any heed of or concern for consequences, and (3) the consequences of the actions of the driver are such that the occurrence of injury is a probability rather than a possibility. * * *. (Citations)."

And in an earlier case, Krell v. May, 260 Iowa 518, 525, 149 N.W.2d 834, 839 (1967), after defining recklessness in substantially the same manner as above, this court concluded:

'Perhaps * * * we have neglected to stress the primary objective we seek, namely, the driver's mental attitude as disclosed by his acts and conduct immediately prior to and at the time of the accident.'

Descriptive of such attitude is this statement in Hartman v. Kruse, 249 Iowa 1320, 1328, 91 N.W.2d 688, 692 (1958): 'It is when a driver has conscious knowledge of a dangerous situation and then does not exercise the slightest care to avoid injury to his guest that recklessness is shown. (Citations).'

Finally noted is this pertinent statement in Goodman v. Gonse, 247 Iowa 1091, 1098, 76 N.W.2d 873, 877 (1956):

'Recklessness is an inference of fact to be drawn from the evidence offered and is a matter for the determination of a jury if the facts disclosed can reasonably be said to support such an inference. However, facts disclosed which can support a finding of recklessness only through speculation and conjecture must not be submitted for jury determination. It is the court's duty to first...

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