Schneider v. Parish

• Decision Date: 16 October 1951
• Docket Number: No. 47834,47834
• Citation: 49 N.W.2d 535,242 Iowa 1147
• Parties: SCHNEIDER et al. v. PARISH.
• Court: Iowa Supreme Court

Page 535

49 N.W.2d 535

242 Iowa 1147

SCHNEIDER et al. v. PARISH.

No. 47834.

Supreme Court of Iowa.

Oct. 16, 1951.

McNett, Kuhns & Moon, of Ottumwa, and F. M. Beatty, of Sigourney, for appellant.

Updegraff & Updegraff, of Sigourney, for appellees.

THOMPSON, Justice.

This action was brought under section 321.494 of the Iowa Code of 1946, I.C.A., designated as the 'guest statute.' The section is identical with the same numbered statute in the Code of 1950. The petition was filed jointly by the guest passenger who was injured, J. Nelson Schneider, a minor, by his next friend, John H. Schneider; and by his father John H. Schneider, claiming for loss of services of J. Nelson Schneider, and for expenses incurred. The cause was submitted to a jury, which returned a verdict for J. Nelson Schneider in the sum of $6,750, and for John H. Schneider for $2,500.

The accident leading to this litigation occurred about 5 p. m. on August 15, 1948, at the intersection of Iowa State Highways Nos. 92 and 149, in Keokuk county. J. Nelson Schneider was at the time riding on a motorcycle owned by the defendant and driven, with his consent, by Wilburn E. Daily, who was killed in the collision. J. Nelson Schneider was riding behind Daily, on what is known as the 'buddy seat' of the motorcycle. He was seriously injured.

Highways 92 and 149 are paved, and form a T intersection not far from the city of Sigourney. No. 92 is an east and west highway, while No. 149 comes from the north, and a short distance north of the intersection divides into two arms, forming a Y for the purpose of entering No. 92. We are concerned with the west arm. No. 149 does not cross 92, but goes west for some distance on the same pavement as 92. There is an unpaved dirt road running on south from the intersection; and about opposite the center of the Y, on the south side of No. 92 is a filling station and cafe. About 75 feet west of the west intersection of 149 and 92 is a bridge, estimated as being from 20 to 30 feet long. At the time of the accident the pavement was dry and daylight visibility was good. No. 92 runs straight approximately east and west at this point, and can be seen for perhaps a mile to the east for some distance from the west of the intersection.

As the motorcycle driven by Daily and carrying Schneider as a passenger approached the intersection (by which we mean the west arm of No. 149 with No. 92) from the west it was behind two trucks traveling in the same direction. The rear truck was driven by Dallas Kitzman. It was loaded with cattle; was a dual wheeled truck equipped with a stock rack, and was 13 1/2 feet long and from 10 feet and 3 inches to 10 feet and 6 inches high. The lead truck was about the same size, but was a closed body or grain bed type. Apparently this truck did not stop following the accident; at least no one discovered the name of the driver or ownership of the vehicle. The distance between the two trucks as they approached the bridge west of the intersection is not given, buy at any rate there is competent evidence from which the jury could have found that, when it was about two truck lengths west of the bridge the driver of the first truck gave a signal indicating a left turn, by putting his hand and arm out of the cab window about 6 inches. At this time the motorcycle was following the rear truck. As the front wheels of this truck came upon the bridge, the motorcycle started to pass it, going at a speed of 50 to 60 miles an hour. Kitzman, the driver of the truck, saw the motorcycle beside his cab at this time. As the motorcycle cleared the bridge the front truck turned left across the pavement to enter the west arm of the Y upon No. 149.

At this time the distance between the front of the rear truck and the rear of the lead truck was about 20 to 30 feet, according to the best estimate of Kitzman. He had slowed the speed of his vehicle to give the front truck time to make the left turn. The driver of the motorcycle was then confronted with the first truck across the roadway in front of him. He attempted to cut between the rear of this truck and the front of the second truck by swinging to the right, but the left handlebar of his machine struck the rear right corner of the front truck, throwing the motorcycle out of control so that it shot across the south side of No. 92 and across the shoulder and the open space beyond and struck a car parked in front of the cafe, badly damaging the car and the motorcycle, killing Daily and inflicting severe injuries upon Schneider.

Daily lived near St. Joseph, Missouri, and apparently was not familiar with the highway upon which he was driving. There is no evidence as to highway signs to the west of the intersection indicating the approach to a junction, unless it can be gained from some photographs introduced in evidence. One of these shows that at the right-hand side of the west end of the bridge there was a sign indicating by an upright arrow that Washington lay straight ahead, while an arrow just below it pointed to the left to Cedar Rapids. Some hundreds of feet back of the bridge and to its west, and so to the west of the intersection, one or two of the pictures show indistinctly some highway signs, which we shall assume, for the purpose of the discussion which follows, indicated that a junction of No. 92 with another highway was being approached.

I. We have set forth the foregoing facts as if fully proven. There is little conflict in the evidence; and in any event we are cognizant of, and have followed, the rule that in determining whether there was generated a sufficient question to require submission to the jury the evidence must be viewed in the light most favorable to the plaintiff. Two other well-established rules are also to be kept in mind: 1. That if there is a conflict in the material evidence, or if the minds of reasonable and informed men might differ on the conclusions to be reached, then, and not otherwise, the matter is for the jury; and 2. that the burden was at all times upon the plaintiffs to show recklessness within the meaning of the guest statute. It should be said in passing that there is no claim that J. Nelson Schneider was not a guest within the meaning of this statute, and there is likewise no claim of intoxication involved.

II. Defendant assigns many errors, but the only ones we find it necessary to discuss are those based upon the refusal of the trial court to sustain the motion for directed verdict, or, failing that, to grant the motion for judgment notwithstanding verdict. We are of the opinion that each of these motions was well founded.

The Iowa guest statute has been before this court many times, and under varying sets of facts there have been varying rulings. Judge Henry Graven of the United States District Court, Northern District of Iowa, in his able and exhaustive analysis in Russell v. Turner, 56 F.Supp. 455 (affirmed by the Eighth Circuit Court of Appeals, 148 F.2d 562) cites, at page 459, and enumerates the cases which have been decided under this section. There are many in which it has been held that a jury question was engendered; about twice as many in which a directed verdict was held to be required. It is cold comfort for a lawyer, or a trial judge, who finds himself involved with this statute, to be told that each case must depend upon a proper interpretation of the law as applied to the particular facts before him; but certainly no hard and fast rule which will apply to all situations can be devised. Justice Evans, in Shenkle, Adm'r v. Mains, 216 Iowa 1324, 1328, 247 N.W. 635, 637, laid down a general principle to be kept in mind in these cases. It was quoted with approval in Olson v. Hodges, 236 Iowa 612, 622, 623, 19 N.W.2d 676, 682, a case in which Justice Bliss reviewed many of the authorities bearing upon the question involved here. The quotation is this: "The statute calls imperatively upon us to recognize a substantial distinction between negligence and reckless operation. * * * Having laid down in the Siesseger case [Siesseger v. Puth] (213 Iowa 164, 239 N.W. 46) the line of demarcation to the best of our ability, our remaining duty for the future is to apply the rule without vacillation to the concrete facts of the particular case. Such has been our course in the cases here above cited. The two grounds upon which recovery may be predicated under section 5026-b1 (section 5037.10, 1939 Code [I.C.A. § 321.494]) are exceptional and not general. The general rule is that a guest cannot recover. The exceptional grounds are: (1) 'intoxication' of the driver; (2) 'reckless operation' by the driver. The exceptional character of these grounds implies an infrequency of application thereof. To use and apply the exceptions as the general rule, and in effect to supplant the general rule with the constant use of the exceptions, is to drive against a red light. If the application of the exceptions becomes more frequent than that of the general rule, it may well be deemed a warning sign that we are misapplying the exceptions." Shenkle v. Mains, supra.

Another principle, which Judg...