Wilcox v. Hilligas

• Decision Date: 18 September 1962
• Docket Number: No. 50634,50634
• Citation: 254 Iowa 204,117 N.W.2d 42
• Parties: Jerry L. WILCOX, by his next friend, M. J. Wilcox, Appellant, v. Donald HILLIGAS and Charles Hilligas, Appellees.
• Court: Iowa Supreme Court

Page 42

117 N.W.2d 42

254 Iowa 204

Jerry L. WILCOX, by his next friend, M. J. Wilcox, Appellant, v. Donald HILLIGAS and Charles Hilligas, Appellees.

No. 50634.

Supreme Court of Iowa.

Sept. 18, 1962.

Orville W. Bloethe, Victor, and Bray, McCoy & Faulkner, Oskaloosa, for appellant.

Tomasek & Vogel, Grinnell, for appellees.

THORNTON, Justice.

A verdict has been directed against plaintiff, a rear-seat guest in defendant's automobile, because of insufficiency of plaintiff's evidence to make a jury question on reckless operation by defendant driver. Hence this appeal.

Plaintiff is entitled to have the evidence viewed in the light most favorable to him. And, if, so viewed, there is substantial evidence from which a jury might reasonably draw an inference of reckless operation, he is entitled to have his case submitted to a jury.

The jury could properly find: On December 11, 1960, defendant Donald Hilligas was driving his father's car (defendant Charles Hilligas), and Dorothy McDonald, Donna Jean Collins, and plaintiff, Jerry Wilcox, were riding with him as his guests. The four were high school students. They had attended a show early in the evening and were returning home on a gravel road between 10 and 11 p. m. that evening. Defendant was driving from 35 to 45 miles per hour in an easterly direction. The gravel portion of the road was 24 feet wide with some loose gravel two feet from the south edge of the gravel. There was no snow, ice, or wet surface on the road, and no other traffic. Defendant and Dorothy McDonald were seated in front, he behind the wheel and Dorothy close beside him so that her left shoulder was in front of him (a third of her back at the shoulder level) and between him and the steering wheel. He was driving with his left hand on the wheel and his right arm around Dorothy. Plaintiff and Donna were sitting on the right-hand side of the back seat. There were three tracks on the gravel road, defendant was driving with his left wheel in the center track and his right wheel in the south or right-hand track. At a point 135 feet (measured along the left wheel track from the driveway west and southwest to the center track in the road) west of the driveway to the Onthank farm the car started to leave the roadway going in a southeasterly direction, it traveled 40 feet to the ditch and 95 feet in the ditch until it struck the earthen driveway to the Onthank farm and knocked a chunk of frozen dirt approximately 1 1/2 feet cube out of the driveway. There was six inches of frost in the ground. The ditch was four feet deep at the driveway, it was that depth for 40 feet west of the driveway, and was about two feet deep where the car entered the ditch. At the point where the car started to leave the roadway defendant was kissing Dorothy. Donna Collins testified, 'At the instant before the car left the road there, Donald Hilligas and Dorothy McDonald were kissing each other.' The car did not swerve and defendant did nothing to either change the course of the car, or to slow its speed, or stop it before it struck the driveway. There was no indication the brakes had been applied. And defendant and Dorothy did not change position. In his deposition, defendant Donald stated in answers to questions by plaintiff's counsel, that the car left the road gradually and he did nothing when this was happening, that it happened so quickly he couldn't think what to do. The speed estimates were from 35 to 45 miles per hour. From the instant the car started to leave the roadway until it struck the driveway something less than three seconds elapsed. A little over two seconds at 45 miles per hour, under three seconds at 35 miles per hour. Prior to the time the car changed course 135 feet west of the driveway there were no complaints made by the guests about defendant's driving, there was no reason to complain.

There are two conflicts in the evidence as introduced by plaintiff, one, in defendant's discovery deposition introduced in part by plaintiff and in part by defendants, defendant Donald states he was not kissing Dorothy and she was not kissing him, two, Donna Collins and defendant in his deposition state the car swerved in the gravel on the south side of the roadway, two witnesses who examined the tracks state the car did not swerve as it went into the ditch. Plaintiff is not bound by the testimony of Donna and in defendant's deposition. See State v. Hobbs, 252 Iowa 432, 437-439, 107 N.W.2d 238, 241, 242. We consider only the evidence favorable to plaintiff, whether or not it was contradicted. Lewis v. Baker, 251 Iowa 1173, 1177, 104 N.W.2d 575, 577. Plaintiff was seriously injured when the car struck the driveway. He suffered a loss of memory from such injuries and was unable to recall or testify to the events leading to the collision.

I. Reckless operation of a motor vehicle as used in section 321.494, Code of Iowa 1958, I.C.A., through the years has been defined by us as meaning more than negligence, more than want of ordinary care. It means, proceeding with no care coupled with disregard for consequences, the acts must manifest a heedless disregard for or indifference to the rights of others in the face of apparent danger or danger so obvious the operator should be cognizant of it, when the consequences of such actions are such an injury is a probability rather than a possibility. Recklessness may include willfulness or wantonness, but if the conduct is more than negligent it may be reckless without being willful and wanton. Siesseger v. Puth, 213 Iowa 164, 182, 239 N.W. 46, 54; Fritz v. Wohler, 247 Iowa 1039, 1041, 78 N.W.2d 27, 28; Schmitt v. Cutkomp, 248 Iowa 575, 578, 81 N.W.2d 662, 664; Lewis v. Baker, 251 Iowa 1173, 1177, 104 N.W.2d 575, 577; Beletti v. Schuster, Iowa, 115 N.W.2d 858; and citations in each of these authorities. In Fritz v. Wohler and Schmitt v. Cutkomp, both supra, we point out the elements of recklessness as follows: (1) No care coupled with disregard for consequences. (2) There must be evidence of defendant's knowledge, actual or chargeable, of danger and proceeding without any heed of or concern for consequences. And (3) The consequences of the actions of the driver are such that the occurrence of injury is a probability rather than a possibility.

Plaintiff argues he has established all three, defendant that none are established.

II. This is our first kissing case. There are two such cases from other jurisdictions. Davis v. Klaiber, 229 F.2d 883 (6th Cir. 1956), was decided under the Ohio guest statute providing a guest may only recover for damages caused by the willful and wanton misconduct of the operator. There the driver attempted to put his arm around and kiss his plaintiff guest. She was only able to exclaim, 'Watch what you're doing,' when the accident happened. The driver was driving between 50 and 55 miles per hour where the maximum speed limit was 40 miles per hour approaching a 45-degree turn, a flashing signal was in operation at the turn. The car went off the road and crashed into a telephone pole. There was no occasion to complain of the defendant's conduct or driving prior to the incident leading to the accident. The court held the conduct of the driver was not willful or wanton within the meaning of the Ohio guest statute.

In Schlesinger v. Miller, 97 Colo. 583, 52 P.2d 402, decided under the...