Thornbury v. Maley

• Decision Date: 09 January 1951
• Docket Number: No. 47750,47750
• Citation: 45 N.W.2d 576,242 Iowa 70
• Parties: THORNBURY v. MALEY.
• Court: Iowa Supreme Court

Page 576

45 N.W.2d 576

242 Iowa 70

THORNBURY v. MALEY.

No. 47750.

Supreme Court of Iowa.

Jan. 9, 1951.

Bryant & Bryant, of Mason City and Hoffmann & Hoffmann, of Des Moines, for appellant.

George D. Dunn, of Mason City, for appellee.

WENNERSTRUM, Chief Justice.

The plaintiff, administrator of the Estate of Joan Elizabeth Thornbury, deceased, brought an action against the administratrix of the Estate of Walter Maley, deceased, for damages resulting from the death of the plaintiff's intestate. It is claimed her death resulted from the reckless driving of a 1942 Buick automobile owned by Walter Maley, now deceased, and driven by Thomas Maley, his son. Young Maley was killed at the same time that the plaintiff's intestate met her death. A verdict of $11,250 was returned in favor of the plaintiff administrator. A motion for new trial was overruled and the defendant administratrix has appealed.

The accident which resulted in the death of the two young people occurred about 1 o'clock on the morning of June 14, 1948 on Highway 18 between the town of Ventura and the city of Clear Lake, Iowa. Thomas Maley was driving the car and Joan Thornbury was in the front seat with him. Hanford O'Leary and Joan Tracy were in the back seat of the Maley car. These young people had met earlier in the evening of June 13 and, according to the testimony, had driven to Mason City for the purpose of attending a picture show. Because of a waiting crowd and the contemplated delay in getting into the theater, they drove around for a while and then went to a golf driving range between Mason City and Clear Lake. Previously they had purchased twelve cans of beer at a filling station north of Mason City. They later drove to McIntosh State Park where they spent some time. There a portion of the beer was consumed by members of the party. They then started to return to a lake cottage where one of the members of the party lived. The accident occurred where there is a sharp curve in the road approximately one-half mile east of McIntosh State Park. There was a large road sign indicating where the road turns. The automobile failed to make this turn and struck trees some distance from the paved highway.

Evidence was introduced that showed the extent of the damage to the car and also injuries to the trees struck by it. Evidence was also presented which showed skid marks of an automobile just off the pavement and in the direction in which the Maley car had traveled from the pavement until it struck the trees. These skid marks were shown to continue for about fifteen feet from the paved highway. From the end of the skid marks to where the car stopped, the distance was between fifty and seventy feet. Alvin Ray Martin, a witness for the appellee, testified that he was fishing in Clear Lake approximately seven hundred feet off shore, that he heard the roar of an automobile, observed lights on it and then heard the crash. This witness gave an estimate of the speed at which the automobile was being driven, stating that it was his opinion that it was traveling at a speed of seventy-five or eighty miles per hour at the time of the accident. Another witness who was at the scene of the accident a short time after it occurred testified that he observed the speedometer of the wrecked automobile and that although somewhat crushed, it was stuck at eighty miles per hour. A witness, who is a service manager for a Buick dealer in Des Moines, testified that an impact on the desh would lock the needle at the speed at which the car was then going. It should be further stated that in connection with the appellee's case, evidence was presented showing that the examination of the blood samples taken from the body of Thomas Maley by the coroner disclosed that there were 101 milligrams of alcohol per 100 cubic centimeters of blood. The doctor, who made the analysis of the blood, testified that the judgment of a person would be impaired with this amount of alcohol in his system.

Appellee's intestate was sixteen years of age and a sophomore in high school at the time of her death. She had taken training as a tap dancer and had earned some money from this source. It was also shown that she had taken care of children at nights in different homes, was a good cook, a good student, loved sports, had been a member of the Girl Scouts and played the French horn in the band. She also had acted as baton twirler in connection with her band activities. It was stipulated that her life expectancy was 45.66 years.

I. Speed alone does not amount to recklessness. McDonald v. Dodge, 231 Iowa 325, 331, 1 N.W.2d 280; Reed v. Pape, 226 Iowa 170, 177, 284 N.W. 106; Claussen v. Estate of Johnson, 224 Iowa 990, 997, 998, 278 N.W. 297, 301. However, in the last cited case we stated as follows: '* * * Undoubtedly there is a point where, because of attendant circumstances, minds of reasonable persons would differ and a jury question would arise on the question whether a speed in excess of 80 miles per hour would be 'proceeding without heed of or concern for consequences,' exhibiting 'no care, coupled with disregard for consequences.' Siesseger v. Puth, 213 Iowa 164 , 239 N.W. 46, 54.' The question whether a particular speed is dangerous depends upon the surroundings and the attendant circumstances. Cerny v. Secor, 211 Iowa 1232, 1237, 234 N.W. 193; McQuillen v. Meyers, 213 Iowa 1366, 1368, 1369, 241 N.W. 442; Reed v. Pape, supra; Mescher v. Brogan, 223 Iowa 573, 581, 272 N.W. 645.

II. The appellant contends that the verdict of the jury is not sustained by the evidence. We cannot so hold. It is definitely shown that there were skid marks near the highway and pointing in the direction where the automobile came to rest, that the car hit a large tree some ninety feet from where the skid marks commenced and between fifty and seventy feet from where they ended and that the bark was completely peeled off a small tree that was about four feet from the large tree. There was testimony that the door handle on one side had pierced the bark of one of the trees. It is also undenied that the curve at the place of the accident was a sharp one.

Our statement in Hart v. Hinkley, 215 Iowa 915, 918, 247 N.W. 258, 259, is applicable to the facts in the present case. We there stated: 'Something more is shown in this case than mere speed. Seventy miles per hour in the nighttime upon a graveled highway would be more or less hazardous at the best. When considered in the light of the surroundings and circumstances shown in this case, we think the evidence quite sufficient to sustain the verdict against the driver of the automobile. The course of the highway, as it approached the bridge, necessitated an abrupt turn to the right and a more or less abrupt turn to the left after making the crossing, which is a circumstance to be considered. It is obvious from the testimony that the driver of the automobile lost control thereof because the speed at which he was driving was so great that he was unable to maintain control of the car and guide it across the bridge and make the necessary turn to the left. It may be that the speed of the car was less than seventy miles per hour, but when considered in the light of the facts and circumstances, was so great as to constitute reckless operation within the meaning of the statute. * * *' See also Maland v. Tesdall, 232 Iowa 959, 965, 5 N.W.2d 327; Mescher v. Brogan, 223 Iowa 573, 579, 272 N.W. 654. We hold there was ample evidence justifying the submission of the question of the claimed recklessness of the driver to the jury.

III. The claimed speed of the Maley car is of importance in this case because of the testimony to which reference has heretofore been made. Particular complaint is made because of the admission of certain testimony of the witness, Alvin Ray Martin. The record in this connection is as follows:

'Q. Mr. Martin, do you have an opinion as to how fast that car was traveling from your observation and your hearing? Mr. Hoffmann: That is objected to as calling for an opinion and conclusion of the witness and purely speculative. The Court: He may answer whether he has such an opinion or whether he has not. A. Yes, I have an opinion.

'Q. What is that opinion? A. I would say---- The Court: Wait a minute. Mr. Hoffman: Same objection urged to the preceding question. The Court: Overruled. You may answer. A. My opinion was between 75 and 80. * * *

Cross Examination: '* * *, I was facing toward shore, would not say there were no other cars passed there between 9 o'clock and midnight, our attention was attracted to this particular car by the roar. We immediately looked up and kept it under observation until just about the time it hit. We watched it for a couple of minutes, could see the headlights of this car when I first looked up, the headlights were coming toward us.

'Q. And you claim to be able to judge the speed of an automobile by observing the headlights coming towards you? A. Well, with the sound of the motor and tires you can form your own opinion as to how fast a heavy motor is going.

'Q. Do you pretend to be able to tell this just how fast a car is traveling with the headlights coming towards you and hearing the sound of the motor? A. I would say that my opinion on the speed at which the car was traveling would be fairly accurate. I formed it on my own observation. I am familiar with the Highway 18 that skirts the north shore of Clear Lake. The curve is a very sharp curve. The pavement is not smooth, it is not really terribly rough, just an average pavement.'

Attention is called to the fact that the one objection that is made does not raise the question whether the witness is qualified to testify relative to the speed of an automobile under the situation here shown. In the case of Lane v. Varlamos, 213 Iowa 795, 799, 800, 239 N.W. 689, a witness testified relative to the speed of an automobile. It was contended on appeal in that case that a proper...