Tomasek v. Lynch

• Decision Date: 15 June 1943
• Docket Number: 46162.
• Parties: TOMASEK v. LYNCH.
• Court: Iowa Supreme Court

10 N.W.2d 3

233 Iowa 662

TOMASEK v. LYNCH.

No. 46162.

Supreme Court of Iowa

June 15, 1943

Gibson, Stewart & Garrett, of Des Moines, and Estey & Estey, of West Union, for appellant.

Antes & Antes, of West Union, for appellee.

MANTZ Justice.

This is a law action wherein Lois Tomasek seeks to recover for injuries which she claims to have suffered while she was riding as a guest in an automobile owned and operated by Hugh J. Lynch on July 5, 1941. She claims that the injuries which she suffered were brought about by the conduct of the defendant in then operating his automobile in a reckless manner, and that at the time he was in an intoxicated condition.

The defendant denies generally the claim of the plaintiff, admits that at the time and place in question he was operating his automobile and that the plaintiff was a guest therein, but avers that the injuries which plaintiff received were by reason of an unavoidable accident. He specifically denies that he was reckless in the operation of his automobile, or that while doing so he was intoxicated.

At the conclusion of the plaintiff's testimony and after she had rested, the defendant moved for a directed verdict on the ground that plaintiff had failed to substantiate her claim sufficiently to have the matter submitted to the jury. This motion was overruled. When both sides had rested the defendant renewed said motion to direct a verdict. This was overruled. Exceptions were taken to both adverse rulings. The cause was submitted to the jury and with the instructions there were submitted to the jury two special interrogatories requested by the defendant. The first interrogatory asked the jury to state whether the defendant at the time and place of the accident was operating his automobile in a reckless manner, and the second whether at said time and place the defendant was in an intoxicated condition. The jury in returning a verdict in favor of the plaintiff answered the first interrogatory in the affirmative and the second in the negative. Judgment was entered after which the defendant moved to set the same aside, for judgment notwithstanding the verdict, and to dismiss plaintiff's petition. The motions were overruled and the defendant has appealed to this court.

Appellee brings suit under what is popularly known as the "Guest statute", which is as follows: "Section 5037.10 Guest statute. 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."

Appellant concedes that appellee was a guest in his automobile at the time she received the injuries complained of. The jury having determined that at the time and place of the accident, the appellant was not intoxicated, appellee's recovery, if any, must be bottomed upon the other exception set forth in the above quoted statute, that is, that she was injured by reason of the reckless operation of the automobile then driven by appellant.

The reckless operation with which appellee charges the appellant in her petition is as follows:

"That the defendant was reckless in the operation of his car at the time of the accident in that he was driving his automobile at said time and place at an excessive rate of speed to-wit: in excess of 65 miles per hour; in that he failed to reduce the speed of his said automobile so that he could make a left turn and avoid running off the end of the road and into the ditch; in that in failing to have his car under control thereby avoiding having the accident." The burden is upon the appellee to establish such allegation of recklessness and she must do so by the greater weight of the evidence. The court in submitting that issue to the jury must have found that appellee had made a showing sufficient to generate a jury question. In order to pass upon the correctness of that action of the court it is necessary to review the evidence thereon as shown in the record.

On July 4 1941, Hugh J. Lynch, appellant, Lois Tomasek, appellee, and John Burke of Waucoma, Iowa, traveling in the automobile owned by Lynch started for Oelwein, Iowa to attend a 4th of July dance. On their way, at Fairbanks, Iowa, Miss Alice Murphy joined the party. The trip was made by prior arrangement. All were mature persons and with the exception of Miss Murphy had been acquainted for many years. Lynch was 25 years old, Burke a year younger, but the ages of the other two members of the party do not appear in the record. Miss Tomasek was a registered nurse and Miss Murphy was a stenographer and worked for the Rath Company at Waterloo. The automobile was in good condition having been completely overhauled about ten days prior to the accident; the brakes and lights were in good condition and the windshield was clear.

The party arrived at the dance between 9 and 10 in the evening, and remained there until about 12:30 following. Practically all of the time was spent visiting and dancing. They left the dance hall at about 12:30 and stopped for a short time to get some hamburgers following which they started for Waucoma stopping at Fairbanks to leave Miss Murphy at her home. Leaving Fairbanks the other members of the party occupied the front seat of the automobile with Lynch driving and with Miss Tomasek between him and Burke. They drove east on highway No 10 and intended to take a road straight north through to the town of Hawkeye and on to highway No. 18. Lynch was not familiar with the roads and depended upon Burke to direct him as to the highway sought. About 5 miles east of Fairbanks they came to a road running north and Burke indicated that the same was the road sought as running straight north to Hawkeye. It was surfaced with crushed stone and gravel and was in good condition. A few miles north they came to an east-west highway, No. 93. Lynch says that he looked for traffic from the other directions and seeing none drove ahead at a speed of about 35 miles per hour. This crossing was a mile south of where the accident took place. Burke as a witness for appellee says that Lynch did not slow up in making the crossing and gave it as his opinion that the car was traveling "somewhere around fifty miles per hour."

As the car proceeded north from No. 93 there was nothing unusual in the manner appellant was driving. Nothing was said by anyone to the effect that the highway being traveled ended a mile north of No. 93. All members of the party were awake talking and visiting. Appellant states that he first discovered that the road indicated by Burke was not the one intended when he saw some trees ahead showing up by his lights. The evidence shows that the road upon which they were traveling ended when it intersected an east-west highway, and that to proceed further the traveler had to turn to the right or to the left. Burke as a witness corroborates Lynch in saying that they thought that they were on the straight road but were mistaken. The row of trees were from 150 to 200 feet north of the east-west highway. Some of the trees were quite large. At the time Lynch discovered that the road ended he was about 60 to 70 feet south of the north edge of the east-west highway. North of the traveled track of this east-west highway is a ditch from 6 to 7 feet deep and extending to the north fence line a distance of about 20 feet. Appellant states that as soon as he discovered the end of the road he realized that he would either have to stop the car or make a turn. He decided to try to stop and applied his brakes but the wheels slid on the crushed rock and gravel and went forward and down into the ditch and over some large rocks therein and came to rest with the left fender against a large corner post about due north of the center line of the north-south highway. Some of the rocks were 20 inches above the surface of the ground. When the car went into the ditch it was going about 5 miles per hour. It did not upset and came to rest on its tires. The ditch was quite abrupt and as the car went into it the occupants were thrown forward and both Lynch and Miss Tomasek received severe injuries. As the car pitched into the ditch Lynch in trying to protect Miss Tomasek threw his arm in front of her and suffered severe cuts from the broken glass in the windshield. The car was undamaged except the left fender was pushed back by coming into contact with the post. The front axle, the radius rods and the grill were damaged in passing over the stones. The radiator and the tires were undamaged. When it stopped the rear end of the car was about 3 feet from the north bank of the east-west highway. As soon as he could the appellant went to a neighboring farm house and there sent word to a physician who later came and treated...