Welch v. Minkel

• Decision Date: 14 February 1933
• Docket Number: No. 41605.,41605.
• Parties: WELCH v. MINKEL ET AL.
• Court: Iowa Supreme Court

215 Iowa 848

246 N.W. 775

WELCH

v.MINKEL ET AL.

No. 41605.

Supreme Court of Iowa.

Feb. 14, 1933.

Appeal from District Court, Webster County; T. G. Garfield, Judge.

This action is brought by the plaintiff, through her father as next friend, to recover damages for injuries sustained in an automobile collision, alleged to have been caused by the “recklessness” of the driver of an automobile in which she was riding as a guest and passenger without pay. This action is brought under the guest statute, section 5026-b1 which does not permit recovery for personal injuries to a guest, except those resulting from drunkenness of the driver or his reckless operation of the car. At the close of plaintiff's evidence, the court sustained defendant's motion for a directed verdict. Judgment was entered for the defendant and the plaintiff appeals.

Affirmed.

Mitchell & Mitchell, of Ft. Dodge, for appellant.

Miller, Miller & Miller, of Des Moines, and Helsell, McCall & Dolliver, of Ft. Dodge, for appellee.

D. M. Kelleher, of Ft. Dodge, for defendant, A. C. Boggs, Jr.

KINTZINGER, Justice.

At the close of plaintiff's case, the court, on defendant's motion, directed a verdict against the plaintiff because the evidence was not sufficient to make out a prima facie case of “recklessness” in operation of a car by the driver.

Both parties concede there is only one question in the case, and that is whether or not sufficient evidence had been introduced on the part of the plaintiff to make out a prima facie case of recklessness. It will therefore be necessary to review the facts in order to determine whether or not the question of “recklessness” should have been submitted to the jury. The facts in this case are briefly as follows:

The collision occurred at the intersection of Second avenue and Tenth street in the city of Ft. Dodge. Second avenue is an east and west street and federal highways known as Nos. 20 and 169 both travel along Second avenue through the city. Tenth street is one of the principal streets of the city, and crosses Second avenue in a north and south direction. There is a stop sign at the northwest corner of this intersection on Tenth street, at a point where such signs are usually placed by the highway commission. Defendant's car was driven by his son in a southerly direction on Tenth street about midnight when the collision occurred on the 17th day of January, 1931.

The plaintiff and one of her girl friends met Willard Minkel as he was traveling along Central avenue just before it reaches Tenth street, about three blocks from the scene of the accident. The girls were invited into the car. Plaintiff's friend sat in the middle, and plaintiff on the right end of the seat. The driver of the car turned south on Tenth street about two blocks from the intersection at which the accident occurred. In order to reach the intersection the car crossed over First avenue. There was also a stop sign on the north side of First avenue, and the testimony tends to show that the driver of the Minkel car either stopped or slowed up for the crossing at First avenue and Tenth street. Then the car proceeded south along Tenth street at about 20 or 25 miles an hour. As the Minkel car approached the intersection of Second avenue and Tenth street, it slowed down at the stop sign to about 15 or 20 miles an hour, and then proceeded to enter the intersection. Although Second avenue is a much-traveled highway, the record shows that there was only one other car on the highway at the time of the collision, that being the car with which defendant collided. The first street west of Tenth street is Ninth street. The evidence shows that there is an incline on Second avenue east towards Tenth street, and Second avenue becomes level just before and as it crosses the intersection with Tenth street.

There is no evidence as to what the driver of the Minkel car did. The evidence does show, however, that the plaintiff herself, who was on the right-hand side of the car, looked to the west as the Minkel car slowed down at the stop sign, but did not see any car approaching from the west. After the Minkel car had slowed down at the stop sign for the intersection, and after the plaintiff herself had seen no car approaching from the west, the Minkel car entered Second avenue at its intersection with Tenth street. The plaintiff says that, after looking to the southwest and seeing no car, she looked to the east, and, after looking to the east, she again looked toward the west, and then saw the lights of the car with which they collided, which is known as the Boggs car. Just as she looked, the crash came. She testified: “As we approached Second Avenue South, I was looking to the southwest. I saw the stop sign, the speed slackened to 15 or 20 miles an hour; I thought it was going to stop. When the car commenced to slow it was about 15 feet away from the stop sign. I looked to the southwest but did not see any car approaching from the west. I think Mr. Minkel put the brake on his car. When I saw that he was slowing for the stop sign, I turned my head to the east and I observed that the Minkel car was entering the intersection, by the time I turned my head back, the crash came.”

The testimony shows that the paintiff was quite seriously injured as a result of the collision. She says further: “When I looked toward the east and then looked toward the west and saw the lights on the Boggs car and then the crash, the Minkel car was, I would say, a little south of the middle of the intersection. As I recall, we were a little south and west of the middle of the street when the crash came.”

The evidence also shows that before the collision the Boggs car, with which the Minkel car collided, was coming over a knoll or an incline west of the intersection on Second avenue, as the Minkel car entered the intersection. The Boggs car was the only automobile on Second avenue at that time and place, and was traveling between 35 and 40 miles an hour. This speed was in violation of the statute. Code, § 5030. The Boggs car struck the Minkel car at a point a little south and east of the center of the intersection. The evidence also shows that, after the Minkel car had driven onto the intersection, it swerved to the left. There was also evidence in the case by one Intermill, the driver of a car following the Minkel car some distance on Tenth street, that he saw the rays of light from the Boggs car as it approached the intersection. The rays of light, however, were thrown upward, and he did not know if they were thrown on the Minkel car, because of the incline from Ninth street to Tenth street on Second avenue, and because of a street light at the intersection of Second avenue and Tenth street. There was also a retaining wall along the property line on the west side of the sidewalk on Tenth street.

The witness Intermill saw the rays of light as the Boggs car was coming over the knoll on Second avenue, but did not see the car itself until it was probably 10 or 15 feet west of Tenth street. This witness also says that, after the Minkel car entered the intersection, its speed was a little more or less than 10 miles an hour. There is also evidence tending to show that a person riding in an automobile 30 feet north from the stop sign on Tenth street could see about 100 feet to the west on Second avenue, and at a point 6 feet north of the stop sign he could see about 200 feet west on Second avenue, both in the nighttime and in the daytime. This is substantially all the testimony offered bearing on the question of recklessness.

In order to make out a prima facie case of recklessness sufficient for submission to the jury, it is necessary that the evidence offered be of such character as to warrant the jury in believing that the ground of recklessness has been established.

It is conceded on both sides that the only question in the case is whether or not, under the evidence, a case of “recklessness” was made out, because of the defendant's failure to stop at the intersection. The courts have held that failure to stop at a stop sign in and of itself does not constitute recklessness....