Russell v. Turner, Civil Action No. 116.

CourtUnited States District Courts. 8th Circuit. Northern District of Iowa
Writing for the CourtGRAVEN
Citation56 F. Supp. 455
PartiesRUSSELL v. TURNER et al.
Docket NumberCivil Action No. 116.
Decision Date01 July 1944

56 F. Supp. 455

TURNER et al.

Civil Action No. 116.

District Court, N. D. Iowa, Central Division.

July 1, 1944.

56 F. Supp. 456

Kelleher & Kelleher, of Fort Dodge, Iowa, for plaintiff.

Floyd E. Page, of Denison, Iowa, and Alan Loth, of Fort Dodge, Iowa, for defendants.

GRAVEN, District Judge.

In this action the plaintiff seeks damages for injuries sustained while riding as a guest in a car owned by the defendant, A. H. Turner, and driven by the defendant, James Turner, his son with his father's permission. The injuries were caused by the car going off the end of an east and west road which terminated at an intersection with a north and south road near Pocahontas, Iowa. This opinion has to do with the sustaining of the defendants' motion for a directed verdict in their favor at the close of all of the evidence.

In cases under the so-called Iowa Guest Statute, which is § 5037.10 Iowa Code of 1939, recovery can only be had by a guest where the conduct of the driver of the car amounts to recklessness. The vital and important question in these so-called guest cases is whether there is sufficient evidence of recklessness to justify the submission of the case to a jury. No federal court opinions have been found dealing with the Iowa Guest Statute.

The plaintiff, a girl 15 years of age, a resident of the State of Illinois, was a visitor in her grandparents' home at Pocahontas, Iowa. On Sunday evening, August 29, 1943, the plaintiff, together with Alfred Victer, age 16, Mary Ann Lorge, age 14, and the defendant, James Turner, age 16, were riding around in the A. H. Turner car with James Turner doing the driving. The young people after attending a movie at a nearby town, came back to Pocahontas, Iowa, and had a lunch there which they finished around 11 o'clock P.M. The car with these four young people in it was then driven out from Pocahontas in a southwesterly direction with James Turner driving the car. It is the claim of the plaintiff that James Turner wished them to see a certain road, while it is the claim of the other occupants of the car that the object of the trip was to view a certain farm house of southern colonial style. The car was driven one mile south and five miles west of Pocahontas when it went off the end of the road at a point where the east and west road upon which the car was traveling ended by coming into a north and south road. Neither the east and west road nor the north and south road was a primary road or a marked road. The road on which they were traveling was graveled to a point a mile east of the intersection. The last mile east of the intersection was an ordinary dirt road in good condition. The right of way of the five-mile stretch of the road upon which the car was traveling, ran straight east and west. It was a pleasant summer night with normal weather conditions. The moon was not shining. It had been dry weather and the road was dry. The car was a 1942 Chevrolet of the two-door type in excellent mechanical condition. The lights and brakes were in good order. The lights were on full at all times.

The road on which they were driving terminated by coming in at right angles to a north and south road and not extending beyond. The north and south road had been lifted up by grading and had been graveled. A profile map of the north and south road covering a distance from 800 feet south of the intersection to a point 1000 feet north of the intersection shows that the center point of the intersection was 6 feet higher than the low point south of the intersection and 5 feet higher than the low point

56 F. Supp. 457
north of the intersection. The traveled portion of the north and south road was 24 feet in width

On the east and west road between 900 and 1000 feet east of the intersection there were some trees growing in the right of way which caused the road to make a slight curve or bend. This curve or bend was somewhat in the nature of a contraction of the traveled portion of the road. West of the trees the traveled portion was 24 feet wide and at the trees it was 20 feet wide, and east of the trees it was from 22 to 23 feet wide. The east and west road slopes moderately up and down as it approaches the north and south road. At a point 1000 feet east of the intersection the road is 3 feet lower than it is at the intersection; at a point 500 feet east it is 2 feet higher; at a point 150 feet east it is 2.1 feet lower, and 100 feet east it is 1.8 feet lower. The intersection of the north and south road and the east and west road is on a knoll so far as both roads are concerned. Because of the knoll and the grading the intersection is at an elevation above the surrounding terrain. West beyond the intersection where the east and west road would go if it were extended is an open pasture which is 8 feet lower than the intersection. There are no trees or buildings in this area which would have been the right of way of the east and west road if it had been extended on west. West of the intersection there is a fence running east and west on about what would be the north line of the right of way of the east and west road if it had been extended, and back some distance in the pasture there is a tree which is about on what would be the south line of the right of way if the road had been extended. On the west right of way line of the north and south road there is a fence running north and south. It is an ordinary fence of netting and barbed wire measuring 44 inches in height on the average to the top barbed wire. One wooden post and one steel post of this fence are within the area immediately west of the intersection. It would be possible by careful observation to see a portion of the top of these posts some distance away, approaching the intersection from the east.

None of the occupants of the car had ever been on the east and west road before and it was a totally unfamiliar road so far as all of them were concerned. James Turner had been over the north and south road once several months before but had no recollection of this particular intersection. There were no signs or reflector buttons or devices indicating the ending of the road. At the time in question there was no traffic on the north and south road or ahead of the car in question on the east and west road. As the car approached the intersection from the east, the plaintiff was sitting sideways in the front seat facing James Turner, the driver, and talking with him and with Alfred Victer and Mary Ann Lorge who were in the back seat. As the car was going west approaching the clump of trees, it was going 75 miles an hour. The plaintiff and the other occupants of the car asked James Turner to drive slower. His response was: "I don't care. I'm mad." He decreased his speed to 65 miles an hour and continued at that rate towards the intersection. The plaintiff felt the car swerve as it went past the trees and she was swayed over and back as the car traversed from the trees to a point 500 feet east of the intersection. She continued in her sideways position throughout. None of the occupants of the car except the driver were in position to look ahead or were looking ahead. The car traveled in a straight line until it went over the embankment. There were skid marks which extended in a straight line 36 feet back from where the car went over the embankment indicating where the brakes took hold. Since there would be a brief interval between the time the danger was observed and the brakes could be applied and take hold, it is obvious that James Turner observed the ending of the road a short distance back of where the skid marks started. At or about the time the danger was observed James Turner called: "Look out!" The car went over the embankment on the west side of the intersection down into the ditch and pushed some distance beyond the ditch. The plaintiff was thrown against the windshield and received a very severe and painful cut on her face which has left a permanent scar. None of the other occupants of the car sustained serious injury. The car was upright when it came to rest, and the occupants were able to open a door and get out.

The defendant, James Turner, after the accident stated to the plaintiff that he had been driving too fast and repeated this statement later to several of the plaintiff's relatives.

Section 5037.10 of the 1939 Code of Iowa provides as follows:

56 F. Supp. 458

"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."

Since in the instant case there was no intoxicating liquor in any way connected with the case, the matter of concern in this case is the construction given to the world "reckless" in the statute by the Iowa Supreme Court.

Section 5037.10 was enacted by the 42nd General Assembly of Iowa (1927) as Chapter 119 of the Acts of that Assembly and became effective July 4th 1927. The first case under this statute came before the Iowa Court in the case of Lou Siesseger v. Puth, 1931, 211 Iowa 775, 234 N.W. 540, but only procedural matters are dealt with in the opinion in that case. In the case of John Siesseger v. Puth, 1931, 213 Iowa 164, 239 N.W. 46, which grew out of the same mishap as the case just referred to but which involved a different plaintiff, the Iowa Court laid down the construction of the word "reckless" in the statute which has been followed by all of the subsequent cases. That construction is given at page 182 of the Iowa citation, at page 54 of 239 N.W., where the Iowa Court states:

"In light of the circumstances under which said chapter 119 was passed, it is apparent, we think, that the Legislature intended the word `reckless' therein to mean `proceeding without heed of...

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    • United States
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    ...Restatement of the Law, Torts, Vol. II, Chap. 19, p. 1292; 5 Am. Jur., Automobiles, Sec. 242, p. 636; Russell v. Turner, (Iowa) (1944) 56 F.Supp. 455; Turner v. Buchanan, (Mich.) (1938) 94 F.2d 723. Respondent did not make a submissible case under the authority of the New Mexico decision. S......
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