Siesseger v. Puth

Citation239 N.W. 46,213 Iowa 164
Decision Date27 October 1931
Docket Number40871
PartiesJOHN SIESSEGER, Appellee, v. J. C. PUTH, Appellant
CourtUnited 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.


Senneff Bliss, Witwer & Senneff and Smith & Feeney, for appellee.

Breese & Cornwell, for appellant.




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:

"There was no turn near the place of accident. The road was straight there. Mr. Puth was driving quite fast and I was frightened on account of his speed, particularly at the turns in the highway. We were going about fifty miles an hour when we came down that incline about a quarter of a mile before the accident. The car began swerving. Mr. Puth put his foot on the accelerator instead of the brake and the car increased in speed and we continued swerving and he lost control completely and we plunged into the ditch. I was not injured. The car tipped over on its side enough to make it difficult to get out. Grade was about ten feet high. The wheels buried themselves in the mud. After the accident, Mr. Puth had the steering wheel in his hand."

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:

"Mr. Puth's car was in the ditch, nose down, front of the car driven into the mud, wheels and spring and everything, clear to the radiator. The grade at this point was about ten feet high. The wind shield was broken. The front seat was broken loose and the right rear door broken out. There was an incline about a quarter of a mile or maybe less from the place of the accident. There was a large winged culvert about fifteen or twenty feet east of the car. Along there were slight depressions with loose gravel. There was no obstruction to the view of the grade or highway as you approached this place. This was primary highway No. 9. It is a graveled road. About forty feet wide. There was such loose gravel on it as ordinarily would be found on graveled highways. The Puth car was on the north side of the grade."

He further testified as to a conversation he had with the defendant, as follows:

"Three or four days later, I talked to Mr. Puth about the accident. He said he was out in the open road and the road looked good and he opened her up and he looked at his speedometer a little while before he came to this place, and then he was going fifty miles an hour. Said he was going between forty-five and fifty miles an hour at the time of the accident. That he was probably driving too fast. Said he wished he had never seen a car then he wouldn't have gotten into this trouble. Said the car hit some loose gravel and started weaving from side to side. That instead of slowing down and putting his foot on the brake, he put it on the gasoline and increased the speed until he lost control of the car and went into the ditch. That when he got out of the car he had the steering gear in his hand."

On cross-examination, said witness testified as follows:

"Mr. Puth told me that just before he went into the ditch he hit some loose gravel. Said there was a slight depression there. The road is a very highly traveled road and I think between the time of accident and the time I saw the place a great many cars had gone by there. Mr. Puth told me that when he struck this depression and loose gravel in the road, that caused his car to swerve and threw him out of control of the car. That he tried to put his foot on the brake but instead it came down on the accelerator. That they went some distance after that at increased speed before the car went into the ditch. That his foot coming onto the accelerator caused the car to shoot ahead and that resulted in his losing control of the car; that he got excited when the car started to swerve and so put his foot on the gas instead of the brake."

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:

"Liability to guest. The owner or operator of a motor vehicle shall not be liable for any damages to any passenger or person riding in said motor vehicle as a guest or by invitation and not for hire, unless damage is caused as a result of the driver of said motor vehicle being under the influence of intoxicating liquor or because of the reckless operation by him of such motor vehicle." (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:

"Liability for damages. In all cases where damage is done by any car driven by any person under fifteen years of age and in all cases where damage is done by the car driven by consent of the owner, by reason of negligence of the driver, the owner of the car shall be liable for such damage."

Chapter 119 of the Acts of the 42nd General Assembly reads as follows:

"An Act to amend the law as it appears in section five thousand twenty-six (5026) of the code, 1924, so as to limit the civil liability of owners and operators of automobiles.

"Be it Enacted by the General Assembly of the State of Iowa:

"Section 1. That the law as it appears in section five thousand twenty-six (5026) of the Code, 1924, be and the same is hereby amended by adding at the end thereof the following:

"Provided, however, the owner or operator of a motor vehicle shall not be liable for any damages to any passenger or person riding in said motor vehicle as a guest or by invitation and not for hire, unless damage is caused as a result of the driver of said motor vehicle being under the influence of intoxicating liquor or because of the reckless operation by him of such motor vehicle.

"Approved March 28, A. D., 1927." (Writer's italics.)

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:

"Careful operation and speed. Every person operating a motor vehicle on the public highway of this state shall drive the same in a careful and prudent manner, and at a rate of speed that will not endanger the property of another, or the life or limb of any person."

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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  • Siesseger v. Puth
    • United States
    • United States State Supreme Court of Iowa
    • October 27, 1931

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