Thompson v. Farrand

• Citation: 251 N.W. 44,217 Iowa 160
• Decision Date: 14 November 1933
• Docket Number: No. 41992.,41992.
• Parties: THOMPSON v. FARRAND.
• Court: Iowa Supreme Court

217 Iowa 160

251 N.W. 44

THOMPSON

v.FARRAND.

No. 41992.

Supreme Court of Iowa.

Nov. 14, 1933.

Appeal from District Court, Polk County; O. S. Franklin, Judge.

An action for damages claimed to have been sustained by plaintiff-appellee by reason of the negligence of the defendant in driving his automobile in which the plaintiff was a passenger. There was a directed verdict for the defendant, which was on motion of the plaintiff-appellee set aside by the court and a new trial granted. Defendant appeals.

Affirmed.

Putnam, Putnam, Langdon & Fillmore, of Des Moines, for appellant.

D. D. Staples and Paul Williams, both of Des Moines, for appellee.

ANDERSON, Justice.

The defendant-appellant, Roy E. Farrand, is a practicing attorney in the city of Des Moines, Iowa. The plaintiff-appellee also resides in Polk county, just outside of Des Moines, Iowa. Shortly before July 1, 1930, the plaintiff had employed the defendant in his capacity as an attorney to look after and care for some business for her which involved a trip to Pella, Iowa, a short distance from Des Moines. On July 1, 1930, the defendant had a trip he desired to make from Des Moines to Ottumwa, and he advised the plaintiff that he would stop at Pella on his trip to Ottumwa and look over some records there bearing upon the business that he had been employed to attend to for the plaintiff. The defendant testifies that the plaintiff suggested that she go along with him as far as Pella, and that he acquiesced in such suggestion; that it was not necessary that the plaintiff be at Pella when the defendant was there, but at her suggestion he invited her to become a passenger in his car on the trip down. The plaintiff testifies that the defendant told her that she should go with him. That “he said he thought that I better go with him and see the papers because I would not know just what I wanted done without I would be there, and he said that it was necessary for me to go.” On the morning of July 1, the defendant phoned to the plaintiff that he was going to make the trip, and, if she would come to his office at 8 o'clock that morning, she could accompany him down. The plaintiff did go to the defendant's office, and with defendant's sister, a Mrs. Sloan, occupied the rear seat of the defendant's car; a son of Mrs. Sloan sat in the driver's seat with defendant. The trip was made to Pella, the business attended to there, and the defendant continued on his errand to Ottumwa, the plaintiff returning to Des Moines in some other conveyance. On the trip to Pella the defendant was driving his automobile 30 to 35 miles per hour, on a straight, open, paved road, a part of which had but recently been paved. The occupants of the car were engaged in conversation as to the beauty of the day and the country through which they were driving, and the defendant's car was driven too near the edge of the new paving and the right wheels thereof dropped off from the pavement where the dirt shoulder had not been completed, and the defendant, in attempting to stop his car when this occurred, placed his foot upon the brake pedal and it slipped from there to the gas pedal, or accelerator, and the car was thus driven off from the pavement into a depression along the side of the road, which was very rough and uneven. The testimony is that the car proceededthus at least 100 feet before the defendant was able to apply the brakes and stop it. The car was then driven back upon the pavement and the parties continued on their trip. The plaintiff claims that she was injured by reason of being thrown against the top or other parts of the car when it was bumping or bounding over the rough ground in the depression, before the defendant brought it to a stop. Such in brief are the facts as disclosed by the record.

At the close of the testimony the defendant moved the court for a directed verdict upon the ground that it appeared from the evidence that the plaintiff was standing upon the allegation of recklessness in her petition, and that the record showed without dispute that the plaintiff and defendant were, prior to and at the time of the accident, engaged in a common enterprise and joint adventure, and, if there were any reckless acts on the part of the defendant, they were imputed to the plaintiff barring the plaintiff's recovery. The court, in ruling upon the motion, held that there was no sufficient evidence to show that the defendant was guilty of reckless driving and withdrew that issue from the consideration of the jury. In the same ruling the court held, however, that there was a question of fact for the jury as to whether the plaintiff was a guest, and the motion to direct was overruled. With the first issue withdrawn from the jury, the defendant further moved the court to direct the jury to return a verdict in favor of the defendant for the reasons: (1) “There is no competent testimony in the record that any negligent acts upon the part of the defendant were the approximate cause of the injuries, if any, to the plaintiff.” (2) “The evidence on the part of the plaintiff, and under the theory of the case of the plaintiff, is that at and prior to the time of the accident, the plaintiff and defendant were engaged in a joint adventure and a common enterprise, and the evidence shows that the relationship of principal and agent existed, or the relationship of master and servant, and that the negligence of the defendant, if any, is imputed to the plaintiff as a matter of law.” This motion was sustained by the court, a verdict was returned by direction of the court, and a judgment rendered thereon against the plaintiff for costs. The plaintiff later filed a motion to set aside the verdict and for a new trial on the ground that the court erred in directing a verdict. This motion was sustained by the court, and from such ruling the defendant prosecutes this appeal.

[1][2] The defendant's first assignment of error is as follows: “The court erred in overruling all the grounds of defendant's motion for a directed verdict made at the close of plaintiff's testimony, and in overruling said motion...