Scott v. Hansen

• Decision Date: 16 January 1940
• Docket Number: 44834.
• Citation: 289 N.W. 710,228 Iowa 37
• Parties: SCOTT v. HANSEN.
• Court: Iowa Supreme Court

289 N.W. 710

228 Iowa 37

SCOTT v. HANSEN.

No. 44834.

Supreme Court of Iowa.

January 16, 1940

Appeal from District Court, Clay County; F. C. Davidson, Judge.

Action at law for damages on account of injuries plaintiff sustained while riding as an invited guest in an automobile owned and being driven by defendant. The cause of the action was grounded on defendant's alleged reckless operation of the car. From a judgment against defendant he has appealed.

Reversed.

HAMILTON, C. J., dissenting.

Cornwall & Cornwall, of Spencer, for appellant.

Baker & Parrish, of Leon, and George A. Heald, Jr., of Spencer, for appellee.

RICHARDS Justice.

At about 5:30 P. M. on August 24, 1936, as defendant was driving his automobile upon a paved highway outside any city or town the car struck a cow that was crossing the road. Riding with defendant as his guest was plaintiff. The two occupied the front seat, defendant on the left side behind the wheel, plaintiff on the right. When defendant stopped the car following the contact with the cow plaintiff found that his right arm was fractured. The testimony was controversial whether when the cow was hit plaintiff was riding along with his right arm extending outside the open window of the right-hand door of the car. To recover damages on account of his injury plaintiff instituted the instant case grounding his cause of action upon allegations that at the time of the accident defendant was being reckless in the operation of the car and that such manner of operation was the proximate cause of the accident and injury. The jury returned a verdict for plaintiff and thereon was rendered a judgment against defendant from which he has appealed.

At the conclusion of the evidence defendant moved for a directed verdict. One of the grounds was that in the record there was no competent evidence to show that defendant was guilty of recklessness in the operation of the car which was the proximate cause of the collision and injuries to plaintiff. Defendant claims that upon this ground the motion should have been sustained and that consequently the court erred in ordering that it be overruled. Plaintiff specified that there was reckless operation in that defendant failed to reduce the speed of the car as he approached the cattle and continued to drive into the cattle at an excessive and reckless rate of speed. Whether there was competent evidence showing that there was such failure and such continued manner of driving into the cattle as plaintiff specified, and if so whether in view of the attendant facts and surrounding circumstances a jury would have been warranted in finding that when the accident happened defendant was driving at a rate of speed that evidenced recklessness of operation of the car, appear to be the questions raised by the above stated ground. In seeking the answers it seems needful that we review the evidence.

If, turning to the record, we confine ourselves entirely to the factual situation plaintiff himself developed by direct examination of several of his witnesses it becomes apparent that he purposely showed, and without contradiction by any witness, certain physical facts and some additional matters, which we summarize in the following paragraph.

The highway extended east and west. The accident occurred 2 1/2 miles west of Strawberry Point upon a stretch of about 40 or 50 feet of level paving laid on a six foot fill. On each side of the level paving were farm buildings. One of the two tenants of the farm on which were these buildings, having opened a pasture gate on the north side of the level paving was herding 14 cows and a bull out of the pasture and across the road in order that the evening milking might be done in the yards on the south side of the highway. But the evidence has to do with but four cows that plaintiff and his witnesses testified had ascended the north bank of the fill and had come upon the roadway proper. The other tenant was standing on the pavement watching for traffic and directing the movement of the cattle. Terminating at the level stretch of paving there was a gradual slope of the highway toward the west for a distance of between a quarter and a half mile. The grade was 3% excepting that midway the paving leveled out for a short distance. Defendant's car traveling west descended this slope in approaching the place of the accident. Plaintiff, according to his testimony, saw four cows upon the first mentioned level stretch of paving when the car was 6/10 of a mile east thereof, and he stated that the speedometer was then registering 80 miles per hour. He also testified, without having again looked at the speedometer, that in his opinion the same speed was maintained until within 300 or 400 feet of the cows, when defendant pulled over to the left side of the road as far as he could. But the car, then at least partly out on the south shoulder of the highway struck the cow's left front shoulder as she was proceeding across the road in a southwesterly direction. Defendant drove on past the cow and parked the car on the north shoulder of the highway. Plaintiff and defendant then got out of the car and walked back to the vicinity of the buildings. The cow had broken ribs, her hide was torn and she was bleeding. It was the right front corner of the car that struck her. Plaintiff also showed that as the result of the contact with the cow the condition of the car was as follows: The right front fender was smashed down, the right headlight was jammed some, and the bumper and the right front door and a place just back of this door were bent; the radiator grill was bent and the radiator tipped to one side but was not leaking; the bar that divides the window in the door on the right side was bent on account of the door being hit; the only new parts required in repairing the car were a headlight and a door handle; the car was not damaged at any place excepting at the right side of the front end and at and just behind the right door as has been stated; no glass was broken excepting that in the right front headlight. Plaintiff also adduced from his witnesses the fact that there were black tire marks four or five inches in width having the appearance of brake marks or skid marks that extended east from the point of the collision. One of these witnesses testified that measurements of these marks were taken by him and others, and that the marks extended for a distance of 354 feet east from the point where the cow was struck. All these matters plaintiff fully developed in either his own testimony or upon his quite extended direct examination of the witnesses he produced.

At this point the query obtrudes itself whether, in deciding upon the ruling on the motion, we should eliminate from any consideration on our part, as plaintiff says we should certain unfavorable portions of the showing plaintiff himself made as a part of his case as set out in the foregoing paragraph. It seems to be plaintiff's thought that in viewing the evidence in a light that is favorable to him it becomes our duty to consign to oblivion the physical facts and some other matters that plaintiff not only conceded but affirmatively and intentionally established, and concerning which there is no contradiction by any witness. Then, according to plaintiff, we should determine the right of the controversy upon certain other testimony in the record the salient features of which are the following. One of plaintiff's witnesses testified he saw the car hit the cow. Then, says this witness, " The cow just spun around and around and around and went up the pavement as it threw her a ways. She flew pretty near up thirty feet without touching the pavement at all; and then she hit the pavement and bounced better than five feet; then she hit the pavement again and bounced again to where she laid." It was like a rubber ball, the witness explained to the jury. The bounce of five feet or more was a bounce of ten or more feet the witness related later in his testimony. He reiterated that preceding this bounce he had seen the cow " fly through the air thirty feet." His testimony was also to the effect that the cow's flying weight when she took off was 1200 pounds. What car velocity and weight would have been required to develope the foot-pounds this witness allegedly saw expended would be a worthwhile if possible calculation. Plaintiff's own testimony was that he was almost sure that defendant at no time applied the brakes and that in his opinion the speed was about seventy or seventy-five miles per hour when the car struck the cow. At another place in his testimony he says it was eighty miles per hour. One of the tenants, as plaintiff's witness, stated " as near as I can say the car was coming down the hill seventy-five to eighty miles per hour and did...