Whiting v. Stephas

• Decision Date: 10 January 1956
• Docket Number: No. 48833,48833
• Citation: 74 N.W.2d 228,247 Iowa 473
• Parties: Earl L. WHITING, Appellant, v. Ben STEPHAS and Blanche Hubbard, Administrators of the Estate of Ernest J. Hubbard, Deceased, Appellees.
• Court: Iowa Supreme Court

Page 228

74 N.W.2d 228

247 Iowa 473

Earl L. WHITING, Appellant, v. Ben STEPHAS and Blanche Hubbard, Administrators of the Estate of Ernest J. Hubbard, Deceased, Appellees.

No. 48833.

Supreme Court of Iowa.

Jan. 10, 1956.

J. I. Hossack and A. D. Avery, Spencer, for appellant.

Herrick, Langdon & Sidney, Des Moines, and Cornwall & Cornwall, and Baldwin & Hoover, Spencer, for appellees.

PETERSON, Justice.

This is an action at law by plaintiff against the administrators of the Estate of Ernest J. Hubbard, deceased. Plaintiff was a guest in the automobile of Hubbard on the evening of August 8th and early morning of August 9, 1953. The automobile was wrecked on a bridge immediately north of Merrill, Iowa, and Hubbard and another guest Kilmer lost their lives. Plaintiff was seriously injured. He alleges reckless driving on the part of Hubbard. A motion for a directed verdict was sustained in favor of defendants, and plaintiff has appealed.

Earl L. Whiting, the plaintiff, is a painter and lives at Spencer, Iowa. After his day's work on August 8, 1953, he came to a tavern known as the 'Grand' in Spencer at about 8 o'clock and met George Kilmer, whom he knew. Kilmer introduced him to Ernest J. Hubbard. Neither the plaintiff nor Kilmer owned automobiles and neither had a driver's license. Hubbard was the owner of a 1947 Chevrolet Tudor Coupe. He invited both of them to take a ride with him. Plaintiff sat in the rear seat and Hubbard and Kilmer in the front seat, with Hubbard driving. At first they drove around Spencer for sometime and then they drove to LeMars. Between Spencer and LeMars plaintiff fell asleep, but when they came to LeMars he was awakened and all three went to a restaurant for coffee. While they were in the restaurant gas was placed in the car, and it was serviced at an adjoining service station.

Sometime after midnight the parties all entered the car again, plaintiff sitting in the rear seat, and the other two parties in the front seat, with Hubbard driving.

At this point a disinterested witness stated that he heard Hubbard say to plaintiff and Kilmer that he would get them to Sioux City in twenty minutes. Sioux City is between twenty and twenty-five miles from LeMars. About six miles south of LeMars is a bridge which is known as the Merrill bridge. It is about one-fourth mile north of the town of Merrill, on U. S. Highway No. 75. The bridge is twenty feet wide and on each side are heavy steel girders about eight feet high and fourteen inches in width. It is approximately one hundred and sixty feet in length. In connection with the approach to the bridge there is a curve to the right. The turn starts approximately one hundred and eighty-five feet north of the bridge and swings toward the west. At said point it is necessary that a car be turned toward the right in order to follow the paving across the bridge. On the right hand side of the road going south, about six feet from the paving and nine hundred and ten feet north of the bridge is a sign post. It has two signs on it. One is a sign about 18 inches square, having upon it a curved arrow, indicating a curve to the right. The other is a '20 M P H' sign. Eight hundred and ten feet north of the bridge is a 'narrow bridge' sign. In front of the bridge railing on the left hand side of the road was a four inch square creosoted post with 3 red reflectors on it, about 2 inches apart.

There were no eyewitnesses as to the actual occurrence. After leaving LeMars the plaintiff again fell asleep in the back seat of the car and he is unable to tell what happened. He was very seriously injured and did not regain consciousness until about two weeks afterward in a Spencer hospital. The physical facts, however, show that the automobile did not make the turn 185 feet north of the Merrill bridge. Instead of following the right hand pathway of travel across the bridge it proceeded in a straight course from the point of the curve in the road, and first struck the post carrying the reflectors, on the left side of the bridge, and knocked same aside. It then ran up the rather steep 8 foot bridge railing support to the top of the railing and proceeded along the top for a distance of 33 feet. The car then fell off the bridge into the river with part of the car in the water and part of it on the river bank. The automobile, weighing three thousand pounds, became dead weight upon striking the bridge banister and was propelled thereafter by the force of previous speed. In this process of travel one part of the appliance under the car was torn loose and became attached to the bridge support. There were marks on the bridge railing support and top, showing the pathway of travel of the automobile. The motor was thrown out of the car, and was found at another spot from where the car was found. There were no skid marks on the paving to indicate any attempt on the part of the driver to follow the curve.

Between ten and fifteen minutes after Hubbard left the gasoline station at LeMars six miles away a trucker drove into the station and said that an accident had happened on the Merrill Bridge and the trucker proceeded to use the telephone, presumably calling the sheriff. The trucker was not a witness in the case so we are unable to say when he arrived at the scene of accident and how much he saw, but the time of the Hubbard car proceeding to the bridge and the truck proceeding back from the bridge, a total distance of twelve miles, is very short. This is not conclusive, but it has a bearing upon the element of speed. When the sheriff and others arrived on the scene they removed Mr. Hubbard and Mr. Kilmer from the car. Mr. Hubbard had already died and Mr. Kilmer died later. They had difficulty in removing the plaintiff because part of the car was resting on him. He was taken to the hospital. From the descriptions of the several witnesses who came to the scene promptly the Hubbard car was a complete wreck.

Prior to 1927, the liability as between operators of motor vehicles and guests was under the same general negligence rule as pertained to all other persons injured through operation of automobiles. However, the 42nd General Assembly adopted the provision of our Statute, which is known as 'Guest Statute', and which is 321.494 of the Code, I.C.A. Under said Statute the owners and operators of motor vehicles were exempted from liability as to guests with two exceptions. First: if the driver was under the influence of intoxicating liquor. Second: the reckless operation of such motor vehicle by the driver.

In this case appellant is not charging that the first exception is effective, although there had been some drinking of beer by the driver of the automobile prior to the fatal ride. The charge of appellant is reckless operation of the motor vehicle by Ernest J. Hubbard.

Many cases involving this Statute have been before the court in the more than quarter century since it was adopted. In this modern day of increasing motor vehicle tragedies, recklessness seems to become more and more the basis of cases.

The question is not for us to decide as to the matter of whether or not there was recklessness involved. That is a question for the jury. However, it is the responsibility of a trial court, and now of this Court, to decide whether or not the evidence is so substantial that such question should be submitted to the jury. From the circumstances, and the physical facts and other supporting evidence heretofore outlined, a jury could find speed. Adding to this the many attendant circumstances, also heretofore shown, they could find recklessness. We hold there is sufficient evidence for submission to the jury.

Counsel for both appellant and appellees cite the well known case in this field of Siesseger v. Puth, 213 Iowa 164, 182, 239 N.W. 46, 54. This case was decided in 1931, which was a comparatively short time after adoption of Chapter 119 of the 42nd General Assembly. In that case a definition of 'reckless' was given and said definition has been the one approved by this court in many reckless driving cases decided since that time. The definition is as follows:

'In light of the circumstances under which said chapter 119 was passed, it is apparent, we think, that the Legislature intended the word 'reckless' therein to mean 'proceeding without heed of or concern for consequences.' To be 'reckless,' one must be more than 'negligent.' Recklessness may include 'willfulness' or 'wantonness,' but if the conduct is more than negligent, it may be 'reckless' without being 'willful' or 'wanton,' but to be reckless in contemplation of the statute under consideration, one must be more than negligent. Recklessness implies 'no care, coupled with disregard for consequences.''

In connection with consideration of the fact that the trial court directed a verdict in favor of defendants it is elementary and has been held many times by this court that the evidence must be viewed in the light most favorable to plaintiff. As to this rule a strong supporting statement appears in Hahn v. Strubel, 243 Iowa 438, 52 N.W.2d 28, 32:

'Here the court directed a verdict against the plaintiff. She was then a beneficiary of the rule that the evidence must be viewed in the light most favorable to her. Likewise she was entitled to every legitimate inference from the facts shown. In addition she was to have taken as established every fact which her evidence fairly tended to prove. The evidence should be given the 'strongest interpretation in (her) favor.' Baker v. Langan, 165 Iowa 346, 145 N.W. 513, 518; Odegard v. Gregerson, 234 Iowa 325, 12 N.W.2d 559; Degelau v. Wight, 114 Iowa 52, 86 N.W. 36. In addition she would be entitled 'to the benefit of all the facts which the evidence offered by him tends to prove, giving them the most favorable construction of which they are fairly susceptible in support of his claim.' Thompson v. Cudahy Packing Co., 171 Iowa 579, 151 N.W. 470, 471. See also rule on such matters...