Thuente v. Hart Motors
| Decision Date | 19 September 1944 |
| Docket Number | 46413. |
| Citation | 15 N.W.2d 622,234 Iowa 1294 |
| Parties | THUENTE v. HART MOTORS. |
| Court | Iowa Supreme Court |
H E. Narey, of Spirit Lake, and Cornwall & Cornwall, of Spencer, for appellant.
Edward D. Kelly, of Emmetsburg, and Burington & Avery, of Spencer, for appellee.
Plaintiff's petition sought damages in the sum of $2449.65 for personal injuries received while riding on a truck owned by defendant of which $449.65 was sought for hospital and medical care and supplies, $1500 for pain, suffering and mental anguish in the past and $500 for pain, suffering and mental anguish in the future; plaintiff also demanded the costs of the action. Count I of the petition predicated liability on the ground of negligence of the driver of defendant's truck. Count II predicated liability on the ground of recklessness of the driver of the truck. Defendant moved the court to require the plaintiff to elect on which cause of action he proposed to proceed. This motion was overruled without prejudice should defendant wish to raise the question during the trial.
At the close of plaintiff's evidence in chief, defendant moved the court to withdraw from the consideration of the jury and to direct a verdict in favor of the defendant on Count I of the petition because the evidence showed that plaintiff was at most only a guest and as such defendant would not be liable to plaintiff for negligence. This motion was sustained and the trial proceeded on Count II of the petition. At the close of all of the evidence, defendant moved for a directed verdict as to said Count II on the ground that the evidence failed to show recklessness. This motion was overruled. The jury returned a verdict in favor of plaintiff for $1200. Judgment was entered thereon, from which defendant appealed to this court. Plaintiff also perfected a cross-appeal from the order which withdrew Count I of his petition from the consideration of the jury.
At the time that the record was settled, it was stipulated that the only question to be raised by defendant on appeal was that the court erred in overruling its motion for directed verdict which challenged the sufficiency of the evidence to show recklessness, and that the only question to be raised by plaintiff was that the court erred in refusing to submit his cause on the theory of negligence. We are of the opinion that there is merit in each appeal.
I. We will first consider the defendant's appeal. Plaintiff was a pharmacist, age 42, and on Oct. 13, 1942, volunteered to assist in the local scrap drive, sponsored by the Spencer Junior Chamber of Commerce. He and a number of other men were on a Ford truck, owned by defendant partnership and operated by one of the partners. They picked up some old motors, steel girders, etc., which were delivered and unloaded. They then picked up a heavy tank, about four feet long and a foot and a half in diameter, weighing from 800 to 1000 lbs., and a quantity of wire. At a collecting station they unloaded the wire but not the tank. They then proceeded south on a paved highway out of Spencer past Leach Field used as a park and athletic field, and made a right-hand turn off the pavement onto a graveled road to the west. As the truck made the turn, the rack or body of the truck tipped and became separated from the rear end of the chassis. The chassis and cab of the truck did not upset. Plaintiff jumped or was thrown from the truck and was injured.
Plaintiff testified, Asked as to the speed of the truck, he answered,
One witness for plaintiff testified that the truck approached the corner at a speed of from 30 to 35 miles an hour and did not slow down appreciably before it reached the corner. Another testified that the truck was traveling 25 to 30 miles an hour and slowed down one or two miles as it approached the corner. Another placed the speed at 30 to 35 miles an hour and that it slowed down about five miles an hour for the turn. Another of plaintiff's witnesses placed the speed of the truck at about 20 miles an hour when it made the turn and that there had been quite a decrease in its speed. Another testified that the speed was 25 to 30 miles an hour and that the driver took his foot from the accelerator as he approached the corner but did not apply his brakes, reducing the speed to from 20 to 27 miles per hour; after the rack started to tip the truck was stopped suddenly. Another witness testified that the speed of the truck was 35 miles an hour and that it kind of skidded around the corner. Another witness placed the speed of the truck at 35 miles an hour.
The truck had been purchased by defendant about seven days before the accident. The rack was bolted on with two 'U' bolts, one in front and one in the rear. After the accident the front bolt still held. The rear bolt was missing and was not found at the scene of the accident.
The testimony offered by defendant created a sharp conflict in the evidence as to the speed of the truck, some of it placing the speed of the truck as it made the turn at 15 miles per hour or less. But it was for the jury to decide as to the credibility of the witnesses. We must view the evidence in the light most favorable to the plaintiff.
The specifications of recklessness asserted in the petition were as follows:
Some doubt arises whether the foregoing allegations state a case of recklessness. But, in any event, the evidence introduced in support of them created nothing more than a jury question on an issue of negligence. We have often held that recklessness is something more than negligence and that proof of negligence alone will not permit a recovery under Section 5037.10, Code 1939, formerly Section 5026-b1, Codes, 1935, 1931, 1927. The following cases are illustrative: Siesseger v. Puth, 213 Iowa 164, 239 N.W. 46; Neessen v. Armstrong, 213 Iowa 378, 239 N.W. 56; Wilde v. Griffel, 214 Iowa 1177, 243 N.W. 159; Levinson v. Hagerman, 214 Iowa 1296, 244 N.W. 307; Welch v. Minkel, 215 Iowa 848, 246 N.W. 775; Koch v. Roehrig, 215 Iowa 43, 244 N.W. 677; Phillips v. Briggs, 215 Iowa 461, 245 N.W. 720; Shenkle v. Mains, 216 Iowa 1324, 247 N.W. 635; Petersen v. Detwiller, 218 Iowa 418, 255 N.W. 529; Stanbery v. Johnson, 218 Iowa 160, 254 N.W. 303; Paulson v. Hanson, 226 Iowa 858, 285 N.W. 189; Scott v. Hansen, 228 Iowa 37, 289 N.W. 710; Roberts v. Koons, 230 Iowa 92, 296 N.W. 811; Peter v. Thomas, 231 Iowa 985, 2 N.W.2d 643; Harvey v. Clark, 232 Iowa 729, 6 N.W.2d 144, 143 A.L.R. 1141; Tomasek v. Lynch, 233 Iowa 662, 10 N.W.2d 3.
The rules, announced and applied in the foregoing decisions of this court, are well known to the bench and bar. It is not necessary to here elaborate upon them. Application of them to the facts of record herein, when taken in the light most favorable to the plaintiff, demonstrates that the defendant's motion for a directed verdict on Count II of the petition should have been sustained. The court erred in overruling it. The defendant's assignment of error in this court is well taken and must be sustained.
II. Plaintiff's assignment of error is submitted to us as an alternative proposition. Plaintiff seeks to sustain the ruling of the trial court on the motion for directed verdict as to Count II and asserts that, if such ruling is to be reversed, then the trial court erred in withdrawing from the consideration of the jury Count I of plaintiff's petition which predicated liability on the ground of negligence in the operation of defendant's truck. As we have sustained defendant's assignment of error as to the disposition of Count II of the petition, it now becomes our duty to consider the cross-appeal of plaintiff.
The high lights of the evidence have been reviewed by us in Division I of this opinion, supra. Further elaboration at this point would not seem necessary. We are satisfied that the evidence when viewed in the light most favorable to the plaintiff, presented a disputed question of fact sufficient to require submission to the jury of the issue whether defendant's truck was operated at a reasonable rate of speed and with due care for the safety of those riding thereon when attempt was made to negotiate the turn to the right at the time when plaintiff received his injuries. Defendant asserts that plaintiff knew all of the circumstances under which he was riding on the truck, made no objection thereto and assumed the risk of injury therefrom. But, were the jury to find defendant guilty of negligence, the evidence would warrant a further finding that the negligence, which was the proximate cause of plaintiff's injury, was of an unexpected nature and of such short duration that plaintiff could not be deemed to have acquiesced therein for such a length of time as to be said to be guilty of contributory negligence as a matter of law. See Miller v. Mathis, 233 Iowa 221, 8 N.W.2d 744. If liability is to be predicated...
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