Wright v. Mahaffa

• Decision Date: 15 December 1936
• Docket Number: 43577.
• Citation: 270 N.W. 402,222 Iowa 872
• Parties: WRIGHT v. MAHAFFA et al.
• Court: Iowa Supreme Court

270 N.W. 402

222 Iowa 872

WRIGHT v. MAHAFFA et al.

No. 43577.

Supreme Court of Iowa.

December 15, 1936

Appeal from District Court, Calhoun County; P. J. Klinker, Judge.

This is an action for personal injury alleged to have been sustained by plaintiff, a minor, through the recklessness of the driver in the operation of defendant's car. From a ruling of the lower court in sustaining defendants' motion for a directed verdict, plaintiff appeals. This is a " guest case."

Reversed.

S. A Frick, of Rockwell City, and D. M. Kelleher, of Fort Dodge for appellant.

Jacobs & McCaulley, of Lake City, and Salinger, Reynolds & Meyers of Carroll, for appellees.

KINTZINGER, Justice.

On June 24, 1934, plaintiff, a minor, sixteen years of age, was riding as a guest in an automobile owned by the defendant Walt. B. Mahaffa, and operated by his son Bernard Mahaffa, on a good graveled public highway running east and west in Elm Grove township, Calhoun county, Iowa. The road was in good condition and about 18 feet wide, with a downgrade toward a railroad track and depression in the road at the foot of the grade. The road was straight, with a downgrade for a distance of over 1,500 feet east of the place where the car swerved off the highway.

There is evidence in the record from which the jury could find that the car as it was proceeding down the hill was traveling at a speed of about 75 miles an hour, and weaving from one side of the road to the other, until it reached a point about 148 feet from a railroad crossing, where the automobile finally swerved off the graveled road and left the highway, running into a ditch on the east side of the railroad track, and across the railroad track, where the car upset and rolled over two or three times before stopping.

One of the witnesses who saw this accident said: " The rate of speed the car was going, * * * was about 75 miles an hour. * * * The car did not appear to travel straight along the road, it would keep weaving * * * from side to side." This witness testified that she was positive the speed of the car was never retarded while it was traveling more than a quarter of a mile to the place of the accident. She also testified the car turned over two or three times as it crossed the railroad track.

The evidence also shows that the automobile was owned by the defendant Walt. B. Mahaffa and was driven with his consent by his son Bernard Mahaffa.

As a result of the accident, plaintiff received severe bodily injuries resulting in a permanent fracture of his spinal column, or a broken back.

The plaintiff, on cross-examination, admitted having signed the following unsworn statement, being Exhibits 11 and 11-A, after the accident, and while he was in bed suffering from a broken back: " * * * Aug. 15, 1934. * * * I am 16 years and senior in High School. On June 24, 1934, I went out to Geo. Souder's farm for dinner. Bernard Mahaffa was * * * there for dinner also. * * about 2:30 P. M. we started for a sand pit down by Yetter to swim. We got in Bernard's car and he drove. I was sitting in the front seat and the three Souder boys were in the back seat. When he had gone about 4 miles we met with an accident. At the time of the accident, we were going west about 45 to 50 miles per hour. This is an ordinary gravel road in good condition. We were approaching a railroad crossing with about a four or five foot raise. When we got about 100 feet from the railroad crossing the car started to swerve across the road and went into on the right hand side before we crossed the track but stopped on this side of the track. I do not know what caused the car to swerve. I did not notice any holes in the road and I do not know whether Bernard applied the brakes or not. I did not see any other cars around. The car had not skidded at any time prior to the accident. There was nothing that I know of that interfered with Bernard's driving. It just seemed to me that the car started to swerve and Bernard lost control of it. * * * We had been driving between 45 and 50 miles per hour most of the way. * * * No one made any complaints about the way Bernard was driving and no one said to slow down or speed up. No tires blew out to my knowledge. There were no witnesses to the accident that I know of outside the occupants of the car. I was knocked unconscious and the last I remember was when I went into the ditch. I have read this report and it is true. Warren Wright."

The plaintiff testified that he never read the statement, but that a stranger came to their house while he was ill in bed and read it to him, but he didn't know whether it was read the way it is now written .

Just prior to the accident, plaintiff was sitting in the front seat with the driver, and three other boys were sitting in the rear seat. While the car was proceeding downhill, the plaintiff was turned around in his seat talking with the boys in the rear seat. He testifies to no estimate of the speed at which the car was going, and said he didn't observe the road ahead or the speedometer because he was talking to the boys in the rear seat. The foregoing is in effect the substance of the testimony offered.

At the close of the evidence, the defendants moved for a directed verdict on substantially the following grounds:

1. Because the evidence fails to show that the car was operated recklessly within the meaning of the statute.

2. Because by the unexplained statements contained in Exhibits 11 and 11-A, plaintiff was precluded from proving recklessness by other evidence. This motion was sustained, and plaintiff appeals.

I.

The first question for consideration, excluding the admission for the present, is whether or not there was sufficient evidence to warrant a jury in finding that defendants' driver was guilty of recklessness.

What constitutes recklessness for which a defendant may be liable for injuries sustained by another was fully discussed, with an exhaustive review of the authorities thereon, in the cases of Siesseger v. Puth, 213 Iowa 164, 239 N.W. 46; McQuillen v. Meyers, 213 Iowa 1366, 1367, 241 N.W. 442; Siesseger v. Puth, 216 Iowa 916, 248 N.W. 352; and the following cases which are hereby referred to for a further discussion upon that subject: Neessen v. Armstrong, 213 Iowa 378, 239 N.W. 56; Shenkle v. Mains, 216 Iowa 1324, 247 N.W. 635; Fleming v. Thornton, 217 Iowa 183, 251 N.W. 158; Stanbery v. Johnson, 218 Iowa 160, 254 N.W. 303; Wright v. What Cheer Clay Prod. Co. (Iowa) 267 N.W. 92.

In Siesseger v. Puth, 213 Iowa 164, loc.cit. 182, 239 N.W. 46, 54, this court said: " It is apparent * * * that the Legislature intended the word ‘ reckless' * * * to mean ‘ proceeding without heed of or concern for consequences.’ To be ‘ reckless,’ one must be more than ‘ negligent.’ Recklessness may include ‘ wilfulness' 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." ’

The term " recklessness," as announced in the foregoing cases, can be said to be construed as meaning something more than negligence or want of reasonable care; that it means proceeding without heed of or concern for consequences; that it may include willfulness or wantonness, but if the conduct is more than negligent, it may be reckless without being willful or wanton; recklessness implies no care, coupled with disregard for consequences, and in the operation of an automobile signifies the driving of a car in a heedless disregard for consequences. The acts must be such as to manifest a heedless disregard for, or indifference to, the rights of others; something that indicates an indifference to consequences; and in the operation of an automobile signifies the driving of the car in heedless disregard for consequences.

Can we say, as a matter of law, that a car is not driven heedlessly and without care of the consequences to others, where it is driven downhill on a gravel road towards a railroad track at a speed of 75 miles an hour, swerving from one side to the other, for a distance of a quarter of a mile, and finally leaving the road, running into a ditch, and turning over two or three times before it finally stopped?

An important consideration in determining the question of recklessness is that the defendants' driver was not faced with any sudden emergency. There were no obstructions between his car and the place where he swerved off the road that would in any manner divert his attention. He was approaching a railroad track and a depression at the foot of the hill for a distance of a quarter of a mile upon a straight gravel road, traveling on a downhill grade. If the defendants' driver was traveling down this hill on a gravel road with his automobile swerving from one side to the other for a distance of a quarter of a mile, in the middle of the afternoon, with a clear view ahead, at a speed of 75 miles an hour, in such a manner that his car, after weaving from side to side, left the roadway, it can hardly be said that there was no evidence tending to establish recklessnes on his part.

A further discussion of this question in a somewhat similar case is found in Siesseger v. Puth, 216 Iowa 916, 248 N.W. 352, to which reference is hereby made. In the latter case we held that under facts almost identical with the facts disclosed in this case, the question of recklessness was properly submitted to the jury.

It is contended that speed alone cannot constitute recklessness. While this may be true, it can hardly be said that speed under any and all circumstances cannot become recklessness. A speed of 75 miles or more an hour, on a...