Wallace v. Reeder, 2--56067

• Decision Date: 26 June 1974
• Docket Number: No. 2--56067,2--56067
• Citation: 219 N.W.2d 27
• Parties: Susan Edna WALLACE, Administrator of the Estate of Kenneth Alan Wallace, Deceased, Appellant, v. Ronald Eugene REEDER, Appellee.
• Court: Iowa Supreme Court

Page 27

219 N.W.2d 27

Susan Edna WALLACE, Administrator of the Estate of Kenneth Alan Wallace, Deceased, Appellant, v. Ronald Eugene REEDER, Appellee.

No. 2--56067.

Supreme Court of Iowa.

June 26, 1974.

Rehearing Denied July 29, 1974.

Hansen, Wheatcraft & McClintock, Des Moines, for appellant.

Hopkins, Bump & Huebner, Des Moines, for appellee.

Heard before MOORE, C.J., and RAWLINGS, LeGRAND, UHLENHOPP, and HARRIS, JJ.

HARRIS, Justice.

In Wallace v. Reeder, 196 N.W.2d 540 (Iowa 1972) we reversed a verdict for the defendant in an automobile guest case. Upon remand the case was tried to another jury which also returned a defendant's verdict. In this appeal plaintiff challenges the instructions on assumption of risk given in the second trial. We affirm.

The action arose after Kenneth Alan Wallace was killed while a passenger in a new 'muscle' car. Wallace (plaintiff) was present to participate in a road test of the vehicle which involved driving at extremely high speeds. The facts were detailed in our opinion upon first appeal and need not be repeated.

Upon the first appeal we approved the definition of assumption of risk adopted by the uniform jury instructions committee of the Iowa Bar Association. We found however the definition was not a sufficient explanation of plaintiff's special claims in this case. On the basis of Winkler v. Patten, 175 N.W.2d 126 (Iowa 1970) and King v. Barrett, 185 N.W.2d 210 (Iowa 1971) plaintiff took the position two distinct acts of recklessness were involved. A high rate of speed was only one. According to plaintiff's theory defendant's act of taking his eyes off the road while driving at great speed was another. In reversing we agreed plaintiff's theory was not fully explained in the instructions and remanded for a new trial.

In the second trial the jury was given the same uniform instruction with the following addition:

'In this case, the plaintiff asserts that defendant was guilty of two reckless acts, first, speeding at an excessive rate and, secondly, the act of taking his eyes off the road while driving at great speed. You should consider the defense of assumption of risk separately as it may apply to each of the alleged acts of recklessness.'

I. Plaintiff believes the expanded instructions are still inadequate and his requested instructions would have properly explained his theory. The requested instructions were properly refused. It would have been error to instruct the jury, as requested by plaintiff, defendant could not claim the defense of assumption of risk unless he showed '(t)hat Wallace knew that Defendant while driving at a high rate of speed turned his head from the road and that Wallace knew of the danger resulting therefrom.'

In our opinion upon the first appeal we merely held plaintiff was entitled to have the jury instructed so as to enable them to consider his claim. That...