Shenkle v. Mains, 41777.

• Decision Date: 04 April 1933
• Docket Number: No. 41777.,41777.
• Citation: 216 Iowa 1324,247 N.W. 635
• Parties: SHENKLE v. MAINS ET AL.
• Court: Iowa Supreme Court

216 Iowa 1324

247 N.W. 635

SHENKLE

v.MAINS ET AL.

No. 41777.

Supreme Court of Iowa.

April 4, 1933.

Appeal from District Court, Story County; T. G. Garfield, Judge.

This is an action for damages for the accidental and wrongful killing of the plaintiff's decedent, John Shenkle, who is alleged to have been a guest of the defendant Harlan Mains at the time that he was fatally injured in an automobile accident. Recovery is sought under the provision of section 5026-b1 of the Code. The answer was in substance a general denial. There was a verdict for the plaintiff and a judgment entered thereon. The defendants appeal.

Reversed.Chas. H. Hall and C. A. Smedal, both of Nevada, Iowa, for appellants.

Lee, Steinberg & Walsh, of Ames, for appellee.

EVANS, Justice.

The accident under consideration occurred shortly after midnight on April 5, 1931. It occurred on the Lincoln Highway at a point four miles west of Marshalltown and near the western foot of a very high hill known as the “four-mile hill.” The events leading up to the accident began on the evening before. Defendant Harlan Mains lived at Colo, and the decedent John Shenkle lived on a farm near by. They had been long-time chums and schoolmates. Shenkle was at home on a vacation from school. He was a member of the graduating class in the School of Pharmacy at the University and was 24 years of age. They arranged to attend a dance at Marshalltown for the evening of April 4. Harlan Mains obtained the use of his father's Chevrolet coach and invited Shenkle to go along. Passing through State Center on their way to Marshalltown, they took in another friend, Harley Reimenschneider, who joined them for the same purpose of attending the dance. The dance was over about midnight and they started their return home. All three young men occupied the front seat of the coach with no occupant in the back seat. “Four-mile hill” is a long and very steep hill. The highway consisted of a paving 20 feet wide. In passing over this hill, the highway had been laid in certain curves. The grade of ascent was 5.75 per cent. The young men had ascended the hill from the east and had come near to its westerly toe when the accident in question occurred. One George Adamson was traveling east and had just begun the ascent of the first rise. He was met by the on-coming automobile from the east. The automobiles passed each other so closely that the Adamson car, an old Model T Ford, was “side-swiped” at its left hind part. The sudden movements following this contact resulted in throwing the three young men out of the coach and inflicting injury upon all of them. The injuries inflicted upon Shenkle resulted in his death within a very brief time. His place on the car's seat was in the middle, with Reimenschneider on the right and Harlan Mains upon the left end. Shenkle is supposed to have been thrown through the windshield. Adamson was only slightly injured. He walked to Marshalltown from the place of the accident immediately following the same. Harlan Mains and Harley Reimenschneider estimated their rate of travel about 35 to 40 miles an hour. Adamson testified on that subject as follows:

“A. No, I don't think so. When I first saw this car I seen the light first, I think it was. Then I see dark. I have never driven a car with a speedometer on it. The first car I had, had one on it. This car didn't have one.

Q. Now without telling me how fast the car was coming, can you tell me from your observations of that car, how fast it was coming? A. Well, it seemed to me it was going about forty-five miles an hour. I think it was coming about forty-five miles an hour.”

The petition charged reckless operation of the car by Harlan Mains, in that he was driving at an excessive rate of speed considering the circumstances surrounding him. These circumstances thus referred to consisted of the steepness of the hill and the curves in the road. The petition also charged that the said defendant was inattentive to the circumstances surrounding him while so driving. These are the only allegations submitted by the court to the jury as constituting reckless operation. Adamson testified that he discovered the on-coming car 400 feet away. He testified at this point as follows: “There wasn't any bend or curve in that hill for a distance of at least four hundred feet. It was just straight and I could see every foot of the way and the lights on my car showed me the Mains car for a distance of at least four hundred feet. I saw three people in the Mains car.” His description of the accident was as follows: “A. It seemed to hit the hind part--knocked the wheel off. I found the wheel outside on the hill about thirty feet southwest. They knocked the left wheel off and knocked the fender off and bent the axle. The rear axle where the wheel was, was bent. My car laid over on its side up to the fence post.”

The injury to the Chevrolet car consisted of broken glass and a flat tire. Mains himself was severely injured and was carried to the hospital from the place of accident. He testified that he did not see Adamson's car until just before the contact. He testified also that the Adamson car was coming right toward him when he first observed it and that there was a curve in the road at that point, which would turn his course due west. The fact that there was a sharp curve at this point is in accord with the contention of the appellee although the fact was negatived by Adamson, as his witness. The foregoing constitute the salient facts attending the accident. Do they disclose reckless operation on the part of Mains as distinguished from negligence? Such is the question submitted for our consideration.

The defendant Walter Mains is the father of Harlan Mains and was the owner of the car. As such, he was impleaded as a defendant.

[1][2] 1. The evidence is without material conflict. We accept it in the light most favorable to the plaintiff. In Siesseger v. Puth, 213 Iowa, 164, 239 N. W. 46, we held that in the absence of conflicting evidence it was the duty of the court to pass upon the application of the statute to the facts in the record. The question presented, therefore, for our consideration is the application to the record of section 5026-b1. Has the plaintiff made out a case of reckless operation? The proper application of this statute presents a question which has given us much study and much concern. The statute calls imperatively upon us to recognize a substantial distinction between negligence and reckless operation. Obedient thereto we have held that reckless operation is not to be deemed as a degree of negligence. It has devolved upon us therefore to recognize and to follow some line of demarcation between the two subjects whereby the facts in each given case may be classified separately rather than intermingled interchangeably. This duty we undertook to perform in Siesseger v. Puth, 213 Iowa, 164, 239 N. W. 46. Since our decision in that case, we have had occasion to apply its pronouncements successively in the following cases: Neessen v. Armstrong, 213 Iowa, 378, 239 N. W. 56, 59;Kaplan v. Kaplan, 213 Iowa, 646, 239 N. W. 682;Wilde v. Griffel (Iowa) 243 N. W. 159;Levinson v. Hagerman (Iowa) 244 N. W. 307. A multiplicity of definitions on such a subject is not particularly helpful. Having laid down in the Siesseger Case 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 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. “Reckless operation,” as a ground of recovery, cannot be very satisfactorily defined in hard and fast terms. Nevertheless it may be readily recognized in the concrete case. In the Siesseger Case, we held that it devolves upon the court to recognize it when the material facts are not in conflict. This means that we may not cast upon the jury our duty to say in any case whether the evidence discloses a case of reckless operation as distinguished from negligence. We cannot therefore permit a case of negligence to be converted into a case of reckless operation by the mere importunity or emphasis of argument. Such is the course, which we have aimed to follow in the cases above cited. All of such cases purported to follow the rule set down in the Siesseger Case.

Appellee concedes that at least some of these cases are against his contention, but he contends that they are wrong. One of such cases is Neessen v. Armstrong, supra. In that case we said: “This action is founded upon recklessness, which means more than negligence. It means proceeding without heed of or concern for, consequences. See Siesseger v. Puth, 213 Iowa, 164, 239 N. W. 46. In order for conduct to be reckless within the meaning of the law, it must be such as to manifest a heedless disregard for or indifference to the rights of others. We find nothing in the record hereinbefore set out which evinces a heedless disregard of the rights of Neessen, who was seated by the side of the driver. We do not think that it could reasonably be said from the evidence that the defendant's conduct, though negligent it may have been, was such a heedless disregard of the rights of Neessen as to justify a verdict in favor of the administratrix. See Silver v....