White v. McVicker, 41547.

CourtUnited States State Supreme Court of Iowa
Writing for the CourtALBERT
Citation246 N.W. 385,216 Iowa 90
Docket NumberNo. 41547.,41547.
Decision Date17 January 1933

216 Iowa 90
246 N.W. 385


No. 41547.

Supreme Court of Iowa.

Jan. 17, 1933.

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

An action to recover for personal injuries sustained in an automobile accident.


EVANS, J., dissenting.

[246 N.W. 385]

Mahoney & Mackey, of Boone, and Putnam, Putnam, Langdon & Fillmore, of Des Moines, for appellant.

Dyer, Jordan & Dyer, of Boone, for appellee.


On November 14, 1930, Harold F. White, Walter Johnson, and Leonard McVicker started for the northern part of the state on a hunting expedition. When they reached a point on road No. 60, about 6 miles south of Webster City, in attempting to pass other automobiles going in the same direction, the defendant's car slipped or was driven off the improved portion of the road into a ditch on the left side thereof, traveling some 160 feet therein, until it struck an embankment of an intersecting road and this accident occurred.

One of the defenses pleaded by the defendant in this action was that of assumption of risk, and on motion the court struck this plea from defendant's answer. The action of the

[246 N.W. 386]

court in thus sustaining the motion is assigned as error.

This brings a question which is res integra in this court. We held in these guest cases that contributory negligence is not available as a plea. Siesseger v. Puth, 213 Iowa, 164, 239 N. W. 46. But the question with which we are now confronted is not controlled by the Siesseger Case. While the doctrine of contributory negligence and assumption of risk may arise under the same set of facts and sometimes thus overlap each other, yet we have consistently distinguished them and held that they are distinct and separate and must not be confounded with each other. See Gorman v. Des Moines Brick Mfg. Co., 99 Iowa, 257, 68 N. W. 674;Sankey v. Chicago, R. I. & P. Ry. Co., 118 Iowa, 39, 91 N. W. 820;Doggett v. Chicago, B. & Q. R. Co., 134 Iowa, 690, 112 N. W. 171, 13 L. R. A. (N. S.) 364, 13 Ann. Cas. 588;Sutton v. Des Moines Bakery Co., 135 Iowa, 390, 112 N. W. 836;Nodland v. Kreutzer & Wasem, 184 Iowa, 476, 168 N. W. 889.

As to the doctrine we are about to discuss, the use of the term “assumption of risk” is probably a misnomer, but the court seems to have generally used the term, and we will follow its practice of using this term to indicate this doctrine.

“Whenever one person is by circumstances placed in such a position with regard to another that every one of ordinary sense who did think, would at once recognize that if he did not use ordinary care and skill in his own conduct with regard to those circumstances, he would cause danger of injury to the person or property of others, a duty arises to use ordinary care and skill to avoid such danger.” Heaven v. Pender, 11 Q. B. D. 508 (1883).

[1] Where one sues on a tort, the defendant has two distinct defenses: “I. To deny that his act caused the damage at all, although admitting the duty, (a) because of an intervening act of some one, or an intervening effect of something breaking the causal connection between the defendant's act and the injury; (b) because of some act of plaintiff's himself occurring simultaneously or subsequently to the defendant's act, breaking the causal connection and rendering the defendant's act no longer the sole proximate cause of the injury. II. To admit that his act caused the damage, but to deny the duty, (a) because no duty was imposed by law upon persons standing in the relative position of the parties, as, for instance, where the plaintiff is a trespasser, or, where he is not such person as the defendant was bound to anticipate would be likely to incur the danger; (b) because the plaintiff himself had voluntarily placed himself in such a position as that no duty arose as towards him.”

No. 1 of the above-stated defenses is ordinarily called “contributory negligence.” The second of the above-specified defenses is that expressed by the maxim “volenti non fit injuria” and, as stated above, it is strictly not a defense, but a rule of law regarding a plaintiff's conduct which forms a bar to a suit brought by him based on another's alleged negligence. One who knows of a danger arising from the act or omission of another and understands the risk therefrom, and voluntarily exposes himself to it, is precluded from recovering for an injury which results from the exposure. Fitzgerald v. Connecticut River Paper Co., 155 Mass. 156, 29 N. E. 464, 31 Am. St. Rep. 537;Gorman v. Brick Mfg. Co., 99 Iowa, 257, 68 N. W. 674.

In other words, toward a person fully cognizant and appreciative of a danger--a risk to which the defendant's conduct exposes him --the defendant has no duty of taking care, and therefore is not negligent.

When an action is brought on a tort, the defendant may say: “You may have been as careful as the most careful man; you may have done a thing that many prudent men do, but you have exposed yourself, with a full knowledge and of your own accord, to a danger which I have brought about. You have hence shown that you agree to take your chances of the danger. I admit that this was not careless of you. But you did assume the risk. I therefore had no duty toward you, and you have no action against me.” “Furthermore, a man, having entered upon a dangerous undertaking with eyes fully open to the danger, may use all the care in the world. In fact, the very danger may make him even more than usually careful. In such a case contributory negligence can not be predicated of him. The question is a larger one. Has he voluntarily assumed the risk of the danger?” 8 Harvard Law Review, 460.

The origin of this doctrine was in the old civil law, and the maxim meant the defense arising from a specific assent by the party injured to the particular act which, if done without assent, would be a legal wrong. To state it in another way, it covers such “conduct as shows a willingness to take the chances of the defendant's action and run the risk; i. e. a general assent to a condition which may or may not give rise to the particular injury.”

In the case of Gorman v. Brick Mfg. Co., 99 Iowa, 257, loc. cit. 262, 68 N. W. 674, 676, we said: “The doctrine of acceptance of risk must not be confounded with that of contributory negligence. In the former case the doctrine is that one who, with full knowledge of the danger, or of the means of knowledge which he should have exercised, voluntarily remains in the employ of his master, disables himself from recovering damages, under the maxim, ‘volenti non fit injuria.’ In the latter case recovery is denied because the plaintiff is wanting in that degree of care which under the circumstances he ought to

[246 N.W. 387]

have used, which want of care contributed to bring about the accident.”

Broom's Legal Maxims (9th Ed.) p. 188, states this doctrine as follows: “In actions founded on tort the leave and license of the plaintiff to do the act complained of usually constitutes a good defense by reason of the maxim volenti non fit injuria * * *; and, as a rule, a man must bear loss arising from acts to which he assented. * * * As a rule, the application of the maxim is justifiable if the plaintiff received his injuries under circumstances leading necessarily to the inference that he encountered the risk of them freely and voluntarily and with full knowledge of the nature and extent of the risk: in other words, if the real cause of the plaintiff running the risk and receiving the injuries was his own rash act.”

[2] The sum total of the application of this doctrine simply stated is that, where one is placed in the position where he has his choice of doing or not doing a given act, this doctrine applies. We take it to be the rule, therefore, under this doctrine, that, where one voluntarily becomes a guest in an automobile, with a knowledge that the driver is incompetent or inexperienced, or after he has assumed his position in the car, it comes to his knowledge that the driver is intoxicated, or is reckless in his driving, and with such knowledge on his part he aids or encourages the driver, or acquiesces or joins or co-operates in such recklessness, he takes the chance of an accident, and, in case an accident occurs, arising from such known incompetency, inexperience, or intoxication of the driver, or other such known recklessness, then plaintiff cannot recover.

Under like statutes, other states have held to this doctrine under similar circumstances. See Haines v. Duffy, 206 Wis. 193, 240 N. W. 152, 153, where it is said: “It is well settled that it was her duty to protest at an excessive or dangerous rate of speed. There is an increasing tendency to designate this failure to protest as contributory negligence. It is not strictly contributory negligence. The duty to protest grows out of the relation of host and guest, and it constitutes an essential element in the question of whether the guest may recover damages resulting from the negligence of the host. * * * Where the invitation is to take an automobile ride, the guest is warranted in assuming that the host will not drive at a reckless or unlawful rate of speed. However, it may suit the pleasure of both the host and guest to drive at a high rate of speed. Where this results with the acquiescence of the guest, the guest is not permitted to recover from the host. This is not because the guest is, strictly speaking, guilty of contributory negligence, or any negligence, but rather because the guest has acquiesced in the conduct of the host, and it would be against reason and justice to permit a recovery against the host under such circumstances.”

As heretofore noted, this question arose by reason of the striking from the defendant's answer the allegations thereto. It is insisted, however, that, even though this might be the rule, no prejudicial error was committed, because there was no evidence on which to base this doctrine. The contention made that the evidence introduced in the case did...

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    ...that the latter phrase is probably a misnomer, but none-theless the doctrines must not be confounded with each other. White v. McVicker, 216 Iowa 90, 246 N.W. 385 (1933). More recently we have said, 'The issues of freedom from contributory negligence and assumption of risk are closely relat......
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