Winkler v. Patten

• Decision Date: 04 March 1970
• Docket Number: No. 53773,53773
• Parties: Lloyd WINKLER, Administrator of the Estate of Ronald Dughman, Deceased, Appellee, v. Larry D. PATTEN and Doraldine A. Edstrom, Appellants.
• Court: Iowa Supreme Court

Page 126

175 N.W.2d 126

Lloyd WINKLER, Administrator of the Estate of Ronald Dughman, Deceased, Appellee, v. Larry D. PATTEN and Doraldine A. Edstrom, Appellants.

No. 53773.

Supreme Court of Iowa.

March 4, 1970.

Betty, Neuman, McMahon, Hellstrom & Bittner, by Thomas F. Daley, Jr., and Monty E. Stratton, Davenport, for appellants.

Dircks, Berger & Saylor, by A. Fred Berger, Jr., Davenport, for appellee.

SNELL, Justice.

This case arose under the Iowa Guest Statute. Recklessness on the part of the driver was alleged. There was evidence of considerable beer drinking prior to the accident but no allegation of intoxication. Defendants pleaded assumption of the risk.

In a one-car accident at about 1 a.m. on September 26, 1966, three of the passengers, including plaintiff's decedent, were thrown from the car and killed. There had been six young men and one girl in the car. The four who survived the crash, including defendant-driver, 'took off running.' At the trial of this case defendant-driver and one of the passengers testified. The other two of the survivors could not be found for service of subpoena.

The administrator of the estate of Ronald Dughman brought this action against Larry D. Patten, the driver and Doraldine A. Edstrom, the owner of the car involved. For convenience the driver will be referred to as the defendant.

During the evening of September 25th defendant, plaintiff's decedent and Sterling Adams met at a pool hall in Davenport. They decided to go for a ride in plaintiff's decedent's car. The other passengers were separately added to the group. After about one-half hour of driving around and drinking some beer they ran out of gas and beer. They then switched to defendant's car and drove to Rock Island where defendant purchased more beer. They returned to Iowa and drove to a quarry area west of Davenport near Buffalo, Iowa. They stopped, sat around on the car fenders, talked and drank the beer. After finishing the beer the group started back to Davenport.

Defendant testified that he had driven the road before and was 'reasonably familiar' with the highway. He was also 'reasonably familiar' with the fact that the highway narrows from a four-lane highway into a two-lane highway and was generally aware of the intersection where this accident took place. He testified that he did not know the speed limit at the location of the accident.

As they approached the scene of the accident, the group was engaged in a general conversation. Adams testified that no one made any protests about the driving of the defendant or about the speed of the automobile.

Defendant also testified that there were no complaints. He estimated his speed at 60 to 65 miles per hour. As he approached the point where the highway narrows and becomes a two-lane highway, he took his eyes completely off the road and looked at somebody in the back seat. He said he took his eyes completely off the road while traveling 65 miles per hour for 'a few seconds, if that long.' At about the same time as he started to turn his head around to the front, the car started to slide and he hit the brakes. In an effort to bring the car back under control, he testified he let up on the brakes and turned the wheels to the left but that this had no effect whatsoever and the car did not appear to slow down. The driver knew they were approaching a curve in the road and an intersection. The car skidded 336 feet, hit a stop sign (on an intersecting road), then skidded 51 feet where it hit a utility pole guy wire and then traveled off the road 150 feet tearing up sod until it struck a small building and stopped. Three bodies, including plaintiff's decedent, were scattered around 15 feet or more from the car. One witness said the bodies were 30 to 35 feet from the car. There was testimony that the car skidded on its wheels and did not roll.

The speed limit at the site of the accident was 35 miles per hour.

Police officers investigated, took measurements and drew a plat of the road and site of the accident with measurements shown. Pictures were taken.

Based on tests, measurements and calculations that are not challenged the minimum possible speed of the car was 75 miles per hour. There was some testimony that the speed might have been higher.

The trial court submitted to the jury the question of defendant's recklessness and defendant's affirmative defense of assumption of risk.

The jury returned a verdict for plaintiff in the sum of $2,500. The amount is small in a death case.

During submission of this appeal appellee's counsel stated that he had difficulty in establishing a measure of damage in a large amount because of decedent's poor work record.

In overruling defendant's motions for judgment notwithstanding the verdict and for new trial the trial court said:

'The evidence discloses facts from which the jury could reasonably find that defendant had been travelling at a high and excessive rate of speed for several miles, the last part of which was in excess of 85 miles per hour in a 35-mile zone, and was travelling at such speed when he entered the curve which he failed to negotiate, that he was familiar with the road or street in this area and made no effort to reduce his speed until he had entered the curve. While his turning his head to look into the rear of the car might of itself have been nothing more than a case of momentary thoughtlessness, his action in doing so while travelling at a high rate of speed and approaching a curve which he knew was there and which could not safely be negotiated at such speed is evidence of proceeding without heed of or concern for consequences and with a heedless disregard for and indifference to the rights of others. From all of the above the jury could reasonably find recklessness on the part of defendant.'

Except that the record before us does not show the evidence of speed in excess of 85 miles per hour, we agree. The record before us shows calculations to a minimum of 75 miles per hour and a statement by Adams on cross-examination that the speed could have been 75 to 80. The evidence of higher speed may have been omitted from our record.

Appellant says the questions on appeal are:

'1. The sufficiency of the evidence of recklessness to support a verdict.

'2. Whether or not the decedent assumed the risk of his injury and death as a matter of law.

'3. The correctness of the Court's instruction defining recklessness.'

I. Since the enactment of our guest statute there have been frequent statements and articles that its purpose was to protect the 'Good Samaritan' against liability incident to an act of kindness. It has also been claimed that it protects insurers against collusion.

Regardless of the purpose it is the duty of the court to define recklessness. It is then the duty of the jury to determine whether the facts in a given case are within that definition. Possibly because of natural reactions to disclosures that were viewed with a jaundiced eye juries have found more and more situations to be within the definition of recklessness.

Although there has been some reluctance, at least on the part of some members, our court has applied a very loose rein on such findings and in most cases has affirmed the verdict.

Whether this tendency is good or bad we need not discuss.

In Lewis v. Baker, 251 Iowa 1173, 1176, 104 N.W.2d 575, 577 in discussing the guest statute, we said:

'It is not for us to say whether there was recklessness, but only whether reasonable minds, such as in theory at least are found in our juries, might so conclude. We shall not attempt to analyze or discuss the many cases in which we have dealt with the problem; to do so would require an extensive treatise prohibited by limitations of time and space. It is sufficient to say that among the numerous decisions facts and language can be found which adopt counsel can cite in support of either side of almost any case arising under the statute.'

On page 1178 of 251, 104 N.W.2d on page 578 Iowa this appears:

'We have often said that speed alone is not sufficient evidence of recklessness to engender a jury question. (Citations). But the statement is so hedged about with qualifications that it means little. Whether excessive speed may amount to recklessness depends upon the attendant circumstances; and there are always attendant circumstances. These arise from the condition and width of the highway, of the light conditions, whether the road is straight or curved, the presence or absence of other traffic, and innumerable other facts which arise in and vary from case to case. From these things, coupled with speed, the courts must determine the issue. Speed does not operate in a vacuum; there are always other conditions surrounding it.'

The jury's findings are binding on us if supported by substantial evidence and we give the evidence the most favorable construction it will reasonably bear in support thereof. Rules 344(f)...