Siesseger v. Puth
Citation | 239 N.W. 46,213 Iowa 164 |
Decision Date | 27 October 1931 |
Docket Number | 40871 |
Parties | JOHN SIESSEGER, Appellee, v. J. C. PUTH, Appellant |
Court | United States State Supreme Court of Iowa |
Appeal from Cerro Gordo District Court.--M. F. EDWARDS, Judge.
Action for personal injury against the owner and driver of an automobile, by the plaintiff, who was riding in the automobile as a guest, said action being founded upon the alleged reckless operation by the driver of the automobile. Trial to the court and a jury. Verdict and judgment for the plaintiff. Defendant appeals.
Reversed.
Senneff Bliss, Witwer & Senneff and Smith & Feeney, for appellee.
Breese & Cornwell, for appellant.
GRIMM J. FAVILLE, C. J., and EVANS, DE GRAFF, ALBERT, and KINDIG JJ., concur. WAGNER, STEVENS and MARLING, JJ., dissent.
The appellant bases his claim for reversal upon error alleged to have been committed by the court in overruling his motion for a directed verdict, and also for alleged error in certain instructions given by the court to the jury.
The plaintiff, a boy seven years of age, is the nephew of the defendant. There is no question, under the record, that at the time of the accident, the boy was a passenger as a guest, by invitation and not for hire, in the automobile owned and driven by the defendant. The accident occurred August 5, 1928. The defendant purchased the car on May 20th of the same year and had driven it 2,367 miles. He had not driven a car prior to May 20th. The party left Mason City about 7 o'clock in the morning for a Sunday trip to Decorah. The accident occurred about two miles east of Osage on primary road No. 9--a graveled road running east and west. There were seven people in the car, the defendant sitting in the front seat at the wheel, his wife being at the right of him, holding the plaintiff on her lap. The other occupants, the mother of the plaintiff, a cousin, Dorothy Siesseger, and a Mr. Westloff occupied the rear seat and a girl, Mary, sat on a stool between the two seats. Relative to the accident, Dorothy Siesseger testified:
Shortly after the accident, the father of the plaintiff was notified by telephone of the accident and he arrived at Osage where the boy had been taken for medical treatment about 10:30 A. M. Shortly thereafter, he went to the place of the accident and as to his observations there, he gave the following testimony:
He further testified as to a conversation he had with the defendant, as follows:
On cross-examination, said witness testified as follows:
The boy testified:
"On the trip there was a while that we were weaving and kind of rolling and Mr. Puth went to step on the brake and stepped on the starter--on the gas and went sideways and went into the ditch."
The foregoing constitutes substantially all of the testimony relative to the accident in which the boy was injured. There is no conflict on the facts.
I. What is the meaning of the word "reckless" contained in Section 5026-b1 of the Code of 1927? The entire section is as follows:
(Writer's italics.)
At the threshold of the inquiry as to the meaning of the word "reckless," consideration must be given to the circumstances under which this statutory provision was passed. In the Code of 1924, there appeared as Section 5026 the following:
Chapter 119 of the Acts of the 42nd General Assembly reads as follows:
As expressed in the title, the purpose of the Act is to "limit the civil liability of owners."
At the time of the enactment of the foregoing chapter, there appeared in the Code of 1927 as Section 5028, the following:
Section 5029 of the Code of 1927 provided a maximum speed of forty miles an hour, the same having been changed from thirty-five to forty by Chapter 120 of the Acts of the Forty-second General Assembly.
In Riepe v. Elting, 89 Iowa 82, 56 N.W. 285, this court had under consideration a violation of a Code provision requiring persons occupying the public highway when meeting to give one-half of the road by turning to the right, and said:
"We conclude that the fact that the son of the plaintiff was on the left of the center of the road when the accident in question occurred was at most only prima facie evidence of negligence."
In McElhinney v. Knittle, 199 Iowa 278, 201 N.W. 586, this court said (in a case concerning rights on the road):
"Under this rule, the most that a district court is warranted in telling a jury is that a violation of an ordinance or statute is prima-facie evidence of negligence."
See also Carlson v. Meusberger, 200 Iowa 65, 204 N.W 432; Hubbard v. Bartholomew, 163 Iowa 58, 144 N.W. 13; Herdman v. Zwart, 167 Iowa 500, 149 N.W. 631; Wagner v. Kloster, 188 Iowa 174, 175 N.W. 840; Powell v. Alitz, 191 Iowa 233, 182 N.W. 236; Johnson v. Kinnan, 195 Iowa 720, 192 N.W....
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