White v. Center

• Decision Date: 03 April 1934
• Docket Number: No. 41887.,41887.
• Citation: 254 N.W. 90,218 Iowa 1027
• Parties: WHITE v. CENTER et al.
• Court: Iowa Supreme Court

218 Iowa 1027

254 N.W. 90

WHITE

v.CENTER et al.

No. 41887.

Supreme Court of Iowa.

April 3, 1934.

Appeal from District Court, Linn County; F. O. Ellison, Judge.

Action at law for damages for injuries sustained by plaintiff because of alleged reckless operation of an automobile in which plaintiff was a passenger. At the close of plaintiff's evidence the trial court sustained separate motions of the defendants for a directed verdict in their favor, and verdict was rendered and judgment entered thereon pursuant to such ruling. Plaintiff appeals.

Reversed.

E. N. Farber, of Marshalltown, and L. D. Dennis, of Cedar Rapids, for appellant.

Grimm, Elliott, Shuttleworth & Ingersoll, of Cedar Rapids, and Putnam, Putnam, Langdon & Fillmore, of Des Moines, for appellees.

DONEGAN, Justice.

On the afternoon of Friday, October 10, 1930, the plaintiff and a companion named Orlo Bush, who were both students at the State University of Iowa, left Iowa City to spend the week-end at their homes in Marshalltown. From Iowa City to Cedar Rapids they drove a car belonging to a friend, which by arrangement was left in Cedar Rapids. From this point they planned to hitch hike the balance of their journey. They obtained a ride with a traveling salesman from Cedar Rapids to what is known as Vinton corner, where the road to Vinton branches off to the north of the Lincoln Highway. They then waited at this intersection until they were picked up by the defendant H. C. Center, who was also going to Marshalltown. When they reached a point about 10 miles southeast of Marshalltown, where the Lincoln Highway ran in a northerly and southerly direction, the car in which they were riding ran into a load of corn which was traveling northward near the east edge of the paved highway, and the plaintiff received injuries for which he sued H. C. Center, the driver of the car, and Homer O. Center, the owner of the car, claiming that the accident and his injuries were caused by the recklessness of H. C. Center, the driver. The defendants filed a general denial and the case went to trial. At the close of the plaintiff's evidence, the defendants filed separate motions for a directed verdict in favor of the defendants. These motions were sustained by the court, and from the ruling of the court sustaining such motions the plaintiff appeals.

Various grounds were set out by the defendants in their motions for directed verdict. The motions were sustained in toto by the trial court, and the appellant in his assignment of error has alleged error on the part of the trial court as to its ruling on each ground of said motions. Although variously alleged, the grounds of such motions may be reduced to the three following propositions: First, that the evidence was insufficient to show that any reckless operation of the automobile by the defendant H. C. Center was the proximate cause of the accident and of plaintiff's injuries; second, that the evidence shows that the plaintiff voluntarily became a guest of the defendant H. C. Center, and rode with him for 45 miles before the accident occurred, and that he thus acquiesced in the acts and conduct of the defendant and assumed the risk, if any, connected with defendant's operation of the automobile; third, that the liability of an owner for the acts of one driving his car with his consent, is purely statutory, and there is no statute which imposes upon the owner liability for damages resulting from the reckless acts of one driving the car with the owner's consent.

[1] I. The evidence shows that after having been picked up by the defendant H. C. Center, the plaintiff and his companion rode from the Vinton corner to the place of the accident, a distance of approximately 45 miles. The automobile was a Model A Ford Cabriolet and the top was down. Both the plaintiff and his companion testified that the wind was coming in over the top of the windshield and from the sides, and that they crouched down in the seat to avoid the force of the wind as much as possible. Bush testified that they left the Vinton corner shortly after 5 o'clock and, according to the testimony of other witnesses, the accident occurred somewhere between 6 and 6:10 o'clock. Bush further testified that some time after they left the Vinton corner, he noticed that the speedometer was registering from 55 to 65 miles an hour. He further testified that he did not know how fast the car was moving when the collision occurred, but that the driver never slowed down his car at any time. The place where the accident occurred was upon a straight level stretch of paved road, the Lincoln Highway, and was visible a distance of at least a quarter of a mile to the south thereof. At the point where the collision occurred, the car in which the plaintiff was riding was proceeding northward on the right side of the road.

Mr. Keen, one of plaintiff's witnesses, resided on the west side of the road and had in his employ a young man who was husking corn in a field south of his house. This witness testified that shortly before the accident he was at his house waiting for this young man to come in with his load of corn; that he saw him drive out of the field onto the Lincoln Highway, and that he was then between 80 and 90 rods from the house; that when he saw this young man approaching with his load of corn he went to the barn to get a team to put the power on the elevator, and just as he went into the barn he heard the crash; that he then ran out and looked down to where he saw the team coming and that he could see that the wagon was pretty badly wrecked; that he immediately ran to the place of the accident and that when he got there the wagon was piled up on the shoulder on the east side of the pavement, the corn was in a heap, the automobile was on fire and was turned crosswise on the pavement with the front end rammed into the southwest corner of the load of corn, the rear wheels of the wagon were broken all to pieces, the spokes were all broken out of one front wheel and both rear wheels, the tire on one of the rear wheels was bowed where the automobile had hit it between two spokes, the wagon reaches were broken in three pieces, the side boards were broken, the front and back end gates were all smashed, the throw-boards were broken and lying in the ditch on the east side of the road, the harness and especially the hold-back straps were badly broken, the wreckage was piled up on the top of the team, and that after they succeeded in getting the team out of the wreckage one of the horses died within a few minutes. This witness further testified that after the wreckage was pretty well cleaned up he asked H. C. Center, the driver of the car, what was the matter with him, and in response to his question H. C. Center said, “Just a little recklessness.”

A Mr. Haire and his wife were also witnesses for plaintiff and testified that on the evening in question they were riding southward on the Lincoln Highway in the front seat of an automobile; that when they were from a half to a quarter of a mile away they saw the boy on the load of corn driving northward on the east side of the road; that the wagon appeared to be close to the edge of the shoulder of the road; that when they met the boy with his load of corn he was on the right side of the road and there was plenty of room to pass; that about the time they passed the load of corn they observed a car coming from the south going northward and that it was then one-half to a quarter of a mile away and coming towards them; that there was no other car or anything to obstruct their view and they saw this car plainly; Mr. Haire estimated the speed of the car in which he was riding at between 20 and 30 miles, and Mrs. Haire estimated its speed at 30 to 32 miles per hour; that as this car approached them from the south they noticed it was being driven awfully fast; that they noticed the vibration and swerving of the car such as takes place where a light car is driven at a high rate of speed; that when they met the car that was coming from the south they were probably two or three hundred feet south of the load of corn; that as soon as this car passed them the driver of the car in which they were riding brought his automobile to a stop, and that very shortly after this car passed them they heard the crash; Mr. Haire estimated the speed of the Center car when it passed them at from 60 to 70 miles per hour, and Mrs. Haire estimated its speed at from 60 to 65 miles per hour.

[2] The rule is so well recognized as to require no citation of authority that, in passing upon a defendant's motion for a directed verdict, all of plaintiff's evidence must be accepted as true in the light most favorable to the plaintiff and must be given the strongest inferences reasonably deductible therefrom. Appying this rule to the evidence in this case, we think the evidence tends to establish and that a jury might find therefrom, that at the time of the collision appellees' automobile was traveling at the rate of 70 miles per hour; that while traveling at this rate it struck the rear end of the wagon a sufficiently direct and violent blow to drive the wagon forward, break the hold-back straps on the harness and pile the wreckage of the wagon up on the team; that it was sufficiently light at the time that other witnesses saw this wagon from a distance of one-half to one-quarter of a mile and that the driver of appellees' car also could and would have seen this wagon for at least a quarter of a mile if he had been looking; that the evidence of the witnesses is sufficient to indicate that there was no other automobile, except that in which the witnesses, Haire and his wife, were riding, at or near the scene of the accident at the time it occurred; and that the testimony of Haire and his wife, together with the location of the wreckage after the accident, is sufficient to show that the wagon was well to the east edge of the paving or even partly off the paving and...