Vipond v. Jergensen

• Decision Date: 07 February 1967
• Docket Number: No. 52305,52305
• Citation: 260 Iowa 646,148 N.W.2d 598
• Parties: Tim VIPOND, Appellant, v. Wendell JERGENSEN, Appellee.
• Court: Iowa Supreme Court

Page 598

148 N.W.2d 598

260 Iowa 646

Tim VIPOND, Appellant, v. Wendell JERGENSEN, Appellee.

No. 52305.

Supreme Court of Iowa.

Feb. 7, 1967.

Rehearing Denied May 1, 1967.

Winkel & Winkel, Algona, for appellant.

Linnan, Lynch & Straub, Algona, for appellee.

LARSON, Justice.

Plaintiff Tim Vipond sought damages for personal injuries sustained by him while riding in an automobile owned by the defendant Wendell Jergensen and operated by his son Charles. The action, brought in two counts, charged Charles with reckless operation and alleged plaintiff was not a guest. At the close of plaintiff's evidence a verdict was directed against him on both counts. The court held (1) the evidence was insufficient to permit a jury- finding of recklessness, and (2) the evidence was insufficient to permit a jury-finding that the accident trip was for the mutual, definite and tangible benefit of the operator and the plaintiff. Thus we have before us in this appeal the two must controversial and troublesome issues courts have had to deal with under section 321.494, Code 1962, better known as the Iowa Guest Statute.

I. Section 321.494 provides: '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.'

This statute permits recovery by a guest for damages resulting from 'reckless operation' of the vehicle, in lieu of his former common-law right based on mere negligence. Goetsch v. Matheson, 246 Iowa 800, 803, 68 N.W.2d 77, 78. Many pages have been written in an effort to distinguish between recklessness and negligence under this statute.

Consistently we have concluded it is not the court's duty to determine whether defendant was reckless, but we are required to examine the evidence to determine whether there is sufficient evidence from which a jury might reasonably draw an inference of reckless operation. Rule 334, Rules of Civil Procedure; Kauzlarich v. Fitzwater, 255 Iowa 1067, 1069, 125 N.W.2d 205. In Shoop v. Hubbard, Iowa, 147 N.W.2d 51, filed December 13, 1966, we carefully considered applicable principles and definitions, many former decisions, and authorities reviewing our previous decisions. They need not be repeated here.

The burden to prove facts from which inferences of recklessness may be found, of course, is upon the plaintiff. Goodman v. Gonse, 247 Iowa 1091, 1099, 76 N.W.2d 873. We must consider the evidence in a light most favorable to the plaintiff regardless of whether it is contradicted. Shoop v. Hubbard, supra; Lewis v. Baker, 251 Iowa 1173, 1177, 104 N.W.2d 575, 577, and citations.

Reckless operation under our guest statute means more than negligence, more than the want of ordinary care. It means, proceeding with no care coupled with disregard for consequences. The acts must manifest a heedless disregard for or indifference to the rights of others in the face of apparent danger or be so obvious the operator should be cognizant of it, especially when the consequences of such actions are such that an injury is a probability rather than a possibility. Recklessness may include willfulness or wantonness, but if the conduct is more than negligence it may be reckless without being willful and wanton. We have required evidence of a persistent course of conduct to show no care with disregard of consequences. If it were not so required, we would be allowing an inference of recklessness from every negligent act. Kauzlarich v. Fitzwater, supra; Delay v. Kudart, 256 Iowa 523, 530, 128 N.W.2d 201, 205; Martin v. Cafer, 258 Iowa 176, 138 N.W.2d 71, 73, 74; Clark v. Marietta, 258 Iowa 106, 138 N.W.2d 107, 111, and citations in each.

Turning, then, to the first issue, it must be determined whether plaintiff by a preponderance of the credible evidence, which means substantial evidence of probative value, has proven facts from which an inference of recklessness may be fairly and reasonably drawn, bearing in mind that this issue cannot be left to speculation, conjecture or surmise. The trial court thought such facts were not so proven, and we agree.

II. The salient facts developed by the evidence disclose that Tim and Charles were close friends, schoolmates, and constant companions. Each had an available automobile and they took turns driving to school and social affairs. Both were good drivers and, until the night of this unfortunate accident, plaintiff had no complaint as to Charles' driving.

This accident occurred about 10 P.M. on August 30, 1964, as Charles was driving his father's automobile eastward on an east-west blacktop highway north of Algona, Iowa, with plaintiff as his passenger. At an intersection with Highway #169, a north-south highway, their vehicle was involved in a collision with a south-bound automobile. Charles was killed, and all other occupants of the cars were seriously injured. Charles did not stop before entering this intersection. A reflectorized stop sign at the entrance to the highway could be seen by one approaching from the west for about 1500 feet. Vehicles approaching from the south on Highway #169 could be seen for some distance, but there was a field of tall corn and other obstructions at the northwest corner of the intersection, and south-bound vehicles could not be seen by one coming from the west until he had almost reached the highway.

Earlier in the evening Tim and Charles had been at the Dennis Jergensen residence, a half mile east of this intersection, for a social affair. Those present decided these boys should go to the Vipond residence in Algona, Iowa, to borrow a stereo record player and some records. As plaintiff did not have his car, they used defendant's. The route taken was west on the blacktop one and a half miles, then south about three miles to Algona on a gravel road. The boys had traveled this route many times and knew the road well. On the way over Charles made the required stop at Highway #169. He traveled at their usual speed of about 50 to 60 miles per hour on the blacktop and about 50 on the gravel. When Tim obtained the stereo and records from his sister, they started back by the same route. After turning eastward onto the blacktop, the boys' conversation turned to hunting and some deer they had seen that morning. When they reached a point between 400 and 500 feet from the Highway #169 intersection, plaintiff testified he realized where they were and warned Charles of the stop sign ahead. He also said that when Charles did not slow down and they were between 250 and 300 feet from the intersection, 'I told him loud enough, 'Stop. Stop." Apparently Charles did not respond quickly enough and the collision occurred. Skid marks appeared 75 feet westward from the point of impact, which was 11 feet into that intersection.

III. A highway patrol officer, called by plaintiff, testified that reaction time, according to the Iowa Driver's Manual which is the period from the time you see an object or make a decision until you apply the brakes, would be 55 feet at 50 miles per hour and 66 feet at 60 miles per hour. In other words, skid marks would not appear for 55 feet after the decision while traveling 50 miles per hour and 66 feet at 60 miles per hour. He also said it would take 201 feet to stop a vehicle traveling at 50 miles per hour and 281 feet at 60 miles per hour. At 55 miles per hour the stopping distance would be 240 feet. It should be noted, in relating these facts we have set out the proffered testimony of Tim, which the trial court rejected as in violation of section 622.4 of of the code, otherwise known as the dead man statute. The correctness of that ruling we shall consider later.

Appellant contends this evidence is sufficient to permit an inference that Charles intended to proceed through the approaching intersection without making a stop as required by law, and that this fact, plus his knowledge of the heavy traffic on Highway #169 and the restricted view to the north, is sufficient to sustain an inference of recklessness in this case.

On the other hand, appellee contends that this evidence is totally lacking in substance of probative value, that at best it tends to prove no more than a momentary inattention or inadvertence of the driver, a failure to observe their nearness to the intersection before he applied his brakes, which could amount to no more than submissible evidence of negligence, that it fails to show any conscious and intentional misconduct toward his guest, and that to permit a jury to pass on the reckless issue under these circumstances would be to allow it to determine that issue on speculation, surmise, and the mere happening of an accident. He maintains the skid marks, laid down after Charles' attention was directed to the stop, clearly indicate he was unaware he was near the intersection, and his action in attempting to stop shows he had no intention to speed across the primary highway. He points out that it did not appear Charles had ever run a stop sign in the past, that his speed as they approached this intersection was excessive, or that he persisted in the face of a timely warning or remonstration by plaintiff.

IV. We have found it impossible to say specifically what evidence is or is not sufficient on the issue of recklessness, and have preferred to pass on the issue after considering all the relevant evidence produced. However, like other courts, we have held that failure to stop at a stop sign at an intersection, in and of itself, does not constitute recklessness. Welch v. Minkel, 215 Iowa 848, 851, 246 N.W. 775; Neessen v. Armstrong, 213 Iowa 378, 239 N.W. 56. Also see Annotation, 3 A.L.R.3d, Auto Accident--Stop Signal or Sign, § 44, pages 438, 439, to the effect that one inadvertently entering a stop...