Russell v. Turner

• Decision Date: 19 April 1945
• Docket Number: No. 12959.,12959.
• Citation: 148 F.2d 562
• Parties: RUSSELL v. TURNER et al.
• Court: U.S. Court of Appeals — Eighth Circuit

148 F.2d 562 (1945)

RUSSELL v. TURNER et al.

No. 12959.

Circuit Court of Appeals, Eighth Circuit.

April 19, 1945.

Denis M. Kelleher, of Fort Dodge, Iowa (John D. Kelleher, of Fort Dodge, Iowa, on the brief), for appellant.

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

Before SANBORN, WOODROUGH, and RIDDICK, Circuit Judges.

SANBORN, Circuit Judge.

This controversy grows out of an automobile accident which occurred the night of August 29, 1943, near Pocahontas, Iowa. Donna Mae Russell (who will be referred to as plaintiff), then fifteen years of age, was a guest passenger in the car involved in the accident. The car belonged to A. H. Turner and was being driven, with his consent, by his sixteen year old son, James Turner. The plaintiff sat beside James in the front seat. Two other young people, also in their teens, sat on the back seat. The car left Pocahontas at eleven o'clock P. M., and just prior to the accident was traveling west on a country road which terminated at its intersection with a road running north and south. James Turner failed to observe that the road upon which he was driving did not extend beyond the intersection, until it was too late to stop or turn. He drove the car straight across the intersection, with its brakes on, into the ditch. The car was wrecked and the plaintiff was badly hurt. She brought this action to recover for her injuries, jurisdiction being based on diversity of citizenship.

A statute of Iowa known as the "Guest Statute," § 5037.10 of the Code of Iowa 1939, relieves the owner or operator of a motor vehicle from liability to a guest passenger for injuries except such as result from the intoxication of the driver or from "reckless operation by him of such motor vehicle."¹

In her complaint, the plaintiff alleged that her injuries "were caused by the heedless, reckless, wilful and wanton acts of James Turner, the driver of said car, in operating and driving said automobile at dangerous and excessive speed and out of control of the driver, and without any care or concern for consequences." This allegation was denied in the answer. The issues were tried to a jury. At the close of the evidence, the court, on motion of the defendants, directed a verdict for them on the ground that the evidence was insufficient to support a finding of "reckless operation". The plaintiff has appealed, contending that the court erred in refusing to submit the case to the jury.

The trial judge has stated the facts in detail and has made an admirable and painstaking analysis of the pertinent Iowa law. See D.C., 56 F.Supp. 455. In substance, his opinion is that a driver may not be adjudged guilty of "reckless operation" of an automobile, under the Iowa Guest Statute, unless the evidence will sustain a finding that he was aware of the danger confronting him and proceeded in disregard of it and without care or concern for consequences.

The question which this court must decide is whether the trial court reached a permissible conclusion in determining that, under Iowa law, the plaintiff had not made out a case.

The considered opinion of a trial judge as to a question of local law may properly be accorded great weight by this court. It will not adopt a view contrary to that of the trial judge unless convinced of error. Magill v. Travelers Ins. Co., 8 Cir., 133 F.2d 709, 713; Roth v. Swanson, 8 Cir., 145 F.2d 262, 266, 268; Doering v. Buechler, 8 Cir., 146 F.2d 784, 788; Railway Mail Ass'n v. Chamberlin, 8 Cir., 148 F.2d 206. This does not mean that an appellant, in order to obtain a reversal of a judgment in a case such as this, must demonstrate error to a mathematical certainty, but it does mean that this court will not overrule a decision of a trial judge upon a question of state law except for cogent and convincing reasons. Compare Yoder v. Nu-Enamel Corporation, 8 Cir., 145 F.2d 420, 423-425; Roth v. Swanson, supra, page 269 of 145 F.2d; Anderson v. Sanderson & Porter, 8 Cir., 146 F.2d 58, 62. All that this court reasonably can be expected to do in reviewing cases governed by state law is to see that the determination of the trial court is not induced by a clear misconception or misapplication of the law.

The factual situation disclosed by the plaintiff's evidence is, in substance, as follows: On the evening of the accident, James Turner called for the plaintiff, who was visiting her grandparents in Pocahontas. He had invited her to accompany him, Alfred Viktor and Mary Ang Lorge to Rolfe, Iowa, which is about ten miles from Pocahontas. The purpose of the trip to Rolfe was to see a show. Alfred Viktor drove the car to Rolfe. The show was over about 9:30 P. M. They then returned to the car. James Turner took the wheel and the plaintiff sat beside him. Alfred Viktor and Mary Ang were in the back seat. They "drove around at Rolfe on the outskirts where a road goes over the railroad track and makes a sharp turn, and Jim James Turner said he knew of a road like that near Pocahontas. He said he would like to show it to us sometime." They loitered on the way back to Pocahontas, and finally had some food in the Pine Room in the hotel there. They then went back to the car, and "they some one other than the plaintiff said `Well let's go out to the road'". It was then eleven o'clock. James drove. The plaintiff was in the front seat with him, and the others were in the back seat. They went one mile west of town and then turned south. "Alfred Viktor said, `Jim, are you sure this road will get us there,' and Jim said, `Yes, it will.'" After going south one mile, the car was turned west again upon a graveled road. The gravel extended for about four miles, and at the end of four miles the road was not good. "It was a dirt road with just a slight bit of gravel over it. It was not as wide as the graveled road." "It was what you might call rolly. It had little hills in it, you might say." As the car approached some trees about 900 feet from the place of the accident, it was "what you might call really speeding". The plaintiff and Mary Ang asked James to slow down. Viktor said, "Yes, you better slow down." James said, "I don't care; I'm mad." This happened about as they reached the trees, where the road (or probably the traveled track) curved slightly to the right. The plaintiff was sitting sideways in the front seat so that she could see both the driver and those in the back seat. She was away from the door. As the car took the curve near the trees, she was pushed against the door. "* * * then I the plaintiff was pushed this way again so I got sort of a jolt, you might say. * * * Then we went over a knoll about halfway between the trees and the place of the accident, and if you have ever ridden on a roller coaster you know how you sort of leave your seat. That is what happened to me; I stayed there; just as if the car was going ahead without me. Then I was sort of thrown, you might say, like this, so my position was more forward (indicating)." She felt the car swerve in the road. The speedometer, as they passed the trees, registered 75 miles an hour; it decreased to 65 miles an hour. The car went over the knoll, and, after reaching the intersection and crossing it, went off the road. The plaintiff had not straightened around in her seat completely at the time the accident happened, although she had been trying to settle herself in the seat from the time the car passed the trees. Her description of the accident is as follows: "Well, right after we went over this knoll, it just seemed as if we were going over another one; but it was another feeling: just as if we were going over another knoll, only I was thrown up so that I hit the top of the car and got a bump on my head, and I was thrown forward so my face went through the windshield; and it hit this, as it went flying over it hit this bank, and I saw it hit. The car bounced up and took the glass and smashed my face into it." After the accident, according to the plaintiff's testimony, James Turner said to her, "Oh, Donna, I am so sorry. It is all my fault. I don't know how I will ever make it up to you. I...