Vance v. Grohe

Decision Date21 September 1937
Docket Number43951.
Citation274 N.W. 902,223 Iowa 1109
PartiesVANCE v. GROHE.
CourtIowa Supreme Court

Appeal from District Court, O'Brien County; O. S. Thomas, Judge.

Action at law to recover damages for the alleged wrongful death of Ruby A. Guenther, plaintiff's intestate, due to the alleged reckless operation of defendant's automobile in which said deceased was riding as a guest. There was a trial to a jury, resulting in a verdict for the defendant. Motion for a new trial and objections and exceptions to instructions were made and overruled, and the plaintiff has appealed.

Reversed and remanded.

Locke & Lampman, of Primghar, and R. W. Zastrow and W. G. Henke both of Charles City, for appellant.

C. C Putnam, of Putnam, Putnam, Fillmore & Putnam, of Des Moines and G. C. Murray, of Sheldon, for appellee.

HAMILTON, Chief Justice.

Cedar Inn is located about 2 1/2 miles northwest of Charles City on federal highways 18 and 218. On the night of September 30 1934, a group of young people, including the decedent, Edward Bluhm, Marvin Soehren, Gladys Runyard, and Stanley O'Dowd, were at the inn. At about 1 o'clock in the morning Edward Bluhm started to leave the inn to go to the city for the purpose of getting some one to come and transport his party to town. As he left the inn he saw the defendant, who was outside sitting alone in his automobile, and the defendant, learning of Bluhm's intention, offered to take him to town. They started out, and as they were leaving the premises they saw the four other young people, and the defendant likewise offered them a ride into town. None of the party had ever met the defendant before. They all got into the car, Bluhm in the front seat with the defendant, and the other four in the back seat. The Chicago, Milwaukee Railroad track intersects this highway, the track running in an easterly and westerly direction, and in going to and from Cedar Inn to Charles City it is necessary to cross this railroad track. As they were driving toward the city and had almost reached their destination, there was something said about another couple that was still out at the inn, who had no way of getting to town except to walk, and that it was Bluhm's intention to get some one and go back after this couple. On learning this fact the defendant said that he could go back and get them, there was still plenty of room in the car, that they could ride in the front seat. Bluhm said he would buy some gas if the defendant would go back after this couple. They stopped on their way into town and bought two gallons of gas and Bluhm paid for it. Defendant drove on down to the main street of the town, made a U turn, and started back. Some of the party, including the decedent, protested about going back; there was something said about there not being room in the car and some of them said they wanted to go home and that they would get out and walk the remaining distance home. The defendant apparently paid no attention to their protests, insisted on being a good fellow, and drove right on back toward Cedar Inn with the intention of picking up this additional couple, and it was on the way back, as he came to this railroad crossing, that the accident occurred which took the life of the decedent. A freight train was moving west across the pavement and the defendant's automobile was driven into this moving train.

There is a sharp dispute in the testimony as to just what was said and done immediately preceding the accident. The evidence on the part of the plaintiff was to the effect that, when they had reached a point on their way back to the inn about 1,100 feet south of the railroad track, Bluhm saw the moving train and called the defendant's attention to the fact that there was a train going across the highway, and again when they had reached a point about 500 or 550 feet south of the railroad crossing Bluhm hollowed, " Lookout, there's a train on the track," and the defendant said, " I see it," but did not slacken his speed and drove right on into the moving train, pulling his car to the left just before the impact, but too late to avoid the collision. On the other hand, the defendant contends that no one saw the train until they were right on to it; that there was some fog on the highway, making visibility poor, and he switched his lights down the better to see; that because of some timber along the railroad track a shadow was cast; that because of these conditions he did not see the train until he was within 35 or 50 feet of it, and it was at this point that Bluhm cried, " There's a train on the track" ; that he put on his brakes, shoving his foot down as hard as he could and pulled his car to the left in an attempt to avoid the collision, but was too close to prevent his automobile from coming in contact with the side of the train.

We will make no further comment on the facts, except as necessary in passing upon some of the legal questions involved, for the reason that the case will have to be reversed and may be retried.

Appellee earnestly contends that the assignments of error do not comply with rule 30, and, technically speaking, they do not. Apparently counsel for appellant in preparing their brief and argument overlooked the citation of the pages and lines of the abstract where the propositions complained of were to be found, and these are printed in the margin opposite each of the assignments of error. This is not in strict compliance with the rule, but does answer the purpose which the rule was intended to accomplish, namely, pointing out to the court the particular page and the lines of the page of the abstract where the matter complained of may be found by the court without looking through the entire abstract, and, while not approving this method, we are constrained to hold that this is in substance, if not in form, a substantial compliance, and will therefore consider the assignments of error upon which the appellant bases her appeal.

The complaints are in the main against the instructions given by the court and refusal of the court to give certain requested instructions. It is necessary to point out and especially consider only a portion of the complaints made.

In presenting the issues to the jury, the court in instructions 6 and 7 defined negligence and reasonable care and then said: " In this case the plaintiff claims that the defendant was reckless in the operation of his car as specified in Paragraph I of these instructions. You have been told the meaning of negligence, and you are further instructed that recklessness means more than negligence. Recklessness indicates an absence of all care, an indifference to consequences and in the case of the driver of a motor vehicle, it also means driving the vehicle in heedless disregard of consequences. It does not mean thoughtlessness or error of judgment." The complaint lodged against this instruction is that the court in thus defining negligence and reasonable care, and then instructing the jury " that recklessness means more than negligence," unduly emphasized matters in defense and unduly minimized the rights of the plaintiff, and that the court should not in this manner have made the comparison between negligence and recklessness. Recklessness was not a matter of defense, it was the very basis of plaintiff's right of action. The right of action being based upon a special statutory ground, it was the court's duty to plainly differentiate and point out to the jury the distinction between negligence and recklessness, and there was nothing in the manner and method adopted by the trial court which would in any way confuse or mislead the jury, and we think the appellant is hypercritical in her complaints lodged against this instruction.

It is also urged that the court erred in not submitting to the jury for their determination the issue as to the relationship between the parties, and in not permitting the jury to say whether or not the decedent was a guest, or whether she was being restrained against her will or riding as a passenger for hire, appellant contending that there was evidence from which the jury could have found that decedent was not a guest but on the trip back to the inn was being transported against her will or that she was a passenger for hire because of the purchase of two gallons of gas by Bluhm. After the evidence was all in, the plaintiff requested the court to submit the issue of whether plaintiff's decedent was or was not a guest at the time of the collision and the issue of defendant's liability under the law of negligence. This the court refused and on his own motion instructed the jury that the decedent was a guest as a matter of law. We think the trial court was right in so holding.

The plaintiff's case is based upon recklessness, and the case was so tried and submitted. Even in her objections and exceptions to the court's instructions on page 106 of the abstract, the...

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