Schmitt v. Cutkomp, 49125

Decision Date05 March 1957
Docket NumberNo. 49125,49125
PartiesNancy SCHMITT, Appellant, v. Stanley CUTKOMP, Appellee.
CourtIowa Supreme Court

A. J. Wassom, Burlington, for appellant.

Hirsch, Riepe & Wright, Burlington, for appellee.

PETERSON, Justice.

Both parties are residents of Burlington. In December 1953 defendant asked plaintiff for a New Year's evening date. She accepted. He did not get through with his day's work until about 9:30, when he stopped at plaintiff's home to advise her he would have to go home and get dressed for the date. He did not return until 11:45. He took her in his automobile to the C.I.O. Club. They stayed about an hour. Each had one bottle of beer. When defendant suggested they leave, he wanted to go to another place across the river, but plaintiff insisted on going home. There was no cordiality between them. She was provoked because he was late for the date, and he was provoked because she would not go with him to another club. In taking her home he drove up Third Street. The street was paved and was 40 feet in width between curbs. They passed High Street, which intersects Third Street, and were proceeding north, and up a hill. Defendant was driving somewhat close to the right curb. Plaintiff noticed a car parked along the curb about 150 feet ahead and she told him 'there is a car ahead of us; * * * look out.' He answered 'Oh, so what.' The testimony of plaintiff is he was driving from 30 to 40 miles an hour, and on cross-examination she said he was driving 'not too fast' and 'not too slow.' As he approached the parked car he turned left to drive around it, but failed to turn quickly enough and hit the left rear corner of the car with the right front corner of his car. In the collision the two cars became entangled. Defendant was not injured although somewhat dazed. The impact was so sudden, and of such force, that plaintiff's head struck the windshield and broke it, seriously cutting and permanently injuring her face.

At the close of plaintiff's evidence defendant filed motion for directed verdict which was sustained. She then filed motion for new trial which was overruled. Plaintiff appeals.

While appellant lists ten errors relied on for reversal she really only alleges 2 propositions. 1. When a verdict is directed the testimony must be considered by the trial court in the light most favorable to plaintiff. 2. Defendant was guilty of recklessness, and came under the exception in Section 321.494, 1954 Code, I.C.A., as to liability.

I. This case again involves the above Section. Since it was enacted by the 42nd General Assembly in 1927, we have decided over forty cases involving the statute. The cases have been especially numerous in the last five years. This is not surprising in view of the astronomical increase in automobile travel miles during these years. The Section eliminates liability of automobile drivers to their guests as to negligence. It excepts only intoxication and reckless driving.

II. The first proposition of appellant, that the facts must be construed in the light most favorable to plaintiff, needs no discussion. Appellee approves the principle, and the trial court specifically announced it as a part of its ruling on the motion for directed verdict. Baker v. Langan, 165 Iowa 346, 145 N.W. 513; Odegard v. Gregerson, 234 Iowa 325, 12 N.W.2d 559; Comfort v. Continental Casualty Co., 239 Iowa 206, 34 N.W.2d 588; Goodman v. Gonse, Iowa, 76 N.W.2d 873.

III. In considering whether or not reckless driving is present, we are confronted with the situation that each case has a different state of facts. There are similarities which assist us in arriving at decisions, but never identical facts. It is not necessary to again analyze a large number of our decisions as to reckless driving. We find an exhaustive consideration of the subject in some of our late cases, and in Russell v. Turner, D.C., 56 F.Supp. 455. The following are recent guest cases in which we have held defendant was not guilty of reckless driving: Shenkle v. Mains, 216 Iowa 1324, 247 N.W. 635; Roberts v. Koons, 230 Iowa 92, 296 N.W. 811; Harvey v. Clark, 232 Iowa 729, 6 N.W.2d 144, 143 A.L.R. 1141; Tomasek v. Lynch, 233 Iowa 662, 10 N.W.2d 3; Long v. Pearce, 233 Iowa 1025, 10 N.W.2d 50; Schneider v. Parish, 242 Iowa 1147, 49 N.W.2d 535; Christensen v. Sheldon, 245 Iowa 674, 63 N.W.2d 892, 48 A.L.R.2d 522; Nesci v. Willey, Iowa, 75 N.W.2d 257; Goodman v. Gonse, supra; Fritz v. Wohlers, Iowa, 78 N.W.2d 27.

The Eighth Circuit Court of Appeals stated a fundamental rule in affirming Judge Graven in Russell v. Turner, 148 F.2d 562, 566, as follows: 'Nonliability of a host driver to a guest passenger injured in an automobile accident is the rule in Iowa, and liability is the exception'. In Shenkle v. Mains, supra [216 Iowa 1324, 247 N.W. 637], we said: 'The two grounds upon which recovery may be predicated [recklessness and intoxication] are exceptional and not general. The general rule is that a guest cannot recover.'

We have consistently adhered to definitions of recklessness established in many cases, starting with our pioneer and foundation case of Siesseger v. Puth, 213 Iowa 164, 239 N.W. 46. In Fritz v. Wohlers, supra, we outlined the three rules and definitions as to reckless driving announced in various decisions, with the thought of including all of them in one decision for ready reference. They are: 'No care, coupled with disregard for consequences.' 'There must be evidence that defendant had actual knowledge of an existing danger, or there was a danger so obvious that he should be cognizant of it, and proceeded without any heed of or concern for the consequences.' 'The consequences of the actions of the driver are such that the occurrence of the catastrophe is a probability rather than a possibility.' We cannot liberalize our often repeated definitions of recklessness farther than as above stated. If we do the result will be nullification of the clear intention of the legislature as enacted in Section 321.494.

We will consider a few cases somewhat similar in facts, in that in each case the driver struck another motor vehicle, or a moving train. Shenkle v. Mains, supra, Roberts v. Koons, supra; Harvey v. Clark, supra; Long v. Pearce, supra.

In Shenkle v. Mains, supra, defendant was driving west on what is known as Lincoln Highway about 4 miles west of Marshalltown. He had passed over a hill when he met a car travelling east and just starting the ascent of the hill. The Mains car 'side-swiped' the passing car and threw all three men, including plaintiff's decedent, out of the car. Injuries were inflicted upon Shenkle resulting in his death. As in the case at bar defendant struck another car. We held a case of negligence was presented, but not recklessness.

In Roberts v. Koons, supra, plaintiff's decedent was riding as a guest of defendant Koons. They were driving north on primary highway No. 11. It was a dark night, the visibility was poor, and a northwest wind whipped sleet and snow into flurries. A Chevrolet truck was stopped party on the east shoulder. Headlights and taillights were on, but no flares had been placed. The driver of the truck had just entered his cab to drive away when defendant's car struck the truck, and as a result of the collision plaintiff's decedent was killed. After careful consideration of previous decisions we held defendant was not guilty of reckless driving.

In Harvey v. Clark, supra, defendant was driving his automobile at about 1:15 A.M. through the town of Jesup. He drove into the side of a moving passenger train. Plaintiff's decedent and another guest were killed. In view of the rules established in previous decisions as to reckless driving this court affirmed the order of the trial court directing a verdict for defendant.

In Long v. Pearce, supra, defendant drove his automobile into the side of a moving train in town of Eldora. Defendant testified he did not remember seeing the train or lights, nor hearing any whistle or bell. The case was submitted to the jury and a verdict rendered for plaintiff. We reversed the case holding that under our long established rules defendant was not guilty of reckless driving.

IV. Appellant emphasizes the remarks made by plaintiff to defendant, and his answer, as shown in statement of facts. It is possible a situation may arise in reckless driving cases where remarks, or caution, by the guest may have a bearing on the final decision, but to date we have not considered such remarks very important in deciding the ultimate question of recklessness. We have primarily based our decisions on 'actions', rather than 'words'. Russell v. Turner, supra; Mescher v. Brogan, 223 Iowa 573, 272 N.W. 645; Goodman v. Gonse, supra. The only condition under which remarks might become pertinent would be if the remarks, coupled with actions of the driver, exhibited evidence of a frame of mind showing no care, and a complete disregard for consequences. Hahn v. Strubel, 243 Iowa 438, 52 N.W.2d 28.

In Russell v. Turner, supra , plaintiff and other occupants of the car asked the defendant to drive slowly. His response was: 'I don't care. I'm mad.' In connection with these statements the decision states: 'It seems that in Iowa the disregard of admonitions and suggestions made to a driver by those riding with...

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