Hebert Ex Rel. Hebert v. Allen

Smith, J.

On July 2,1948, about 2:30 p.m. plaintiff, James R. Hebert (seventeen), and his young friend Richard Hennagir were walking north on Chautauqua Avenue in Charles City en route to near-by Lion’s Field to play tennis.

Defendant Robert Hildebrand, driving defendant Allen’s Model A Ford, approached them from behind, stopped, and invited them to “hop on.” They “hopped on” the right-hand running board to ride the short distance to Lion’s Field, Hen-nagir standing in front of plaintiff.

The car proceeded north, at 15 to 25 miles per hour, and within about one-lialf block distance swerved off the pavement to the right and sideswiped a telephone or light pole standing about three and one-half feet east of the traveled or black top surface of the street. The black top along* there was about 34 feet wide and the grassy shoulder alongside was quite flat and relatively flush with the pavement. The street was slightly upgrade toward the north. The day was clear and sunny and there was no other traffic along' there at that time. The driver was iwenty-one years old and had driven since he was seventeen— was familiar with the street, had driven it many times.. There is no evidence of any defect in the car or of any emergency or any circumstances to divert the driver’s attention. As the boys stood on the running board they could look over the top of the ear but could not see the driver. There was no conversation with him after they started.

Hennagir testified:

“The right-hand side of the car sideswiped the telephone pole and pinned Jim [plaintiff] and myself between the ear and the pole.” He also said: “The car didn’t go hardly at all after it hit the post. It stopped a Tittle ways just right beyond the post * * I wouldn’t say that it was over ten feet. I don’t remember whether the car was on the road after it stopped, or not. I was laying down in the ditch a very short distance from the pole. * * ® The ambulance came and picked us up.”

Plaintiff testified:

“I would say it was about seventeen feet, maybe between fifteen and twenty feet [south of the pole] when I first noticed the car veering over to the east a little .bit. * * * The right wheels had been traA^eling probably two or three feet west of the east edge of the dirt before we veered to the east. Just before the accident as I leaned out to look at the post I said, ‘What is happening?’ I spoke that to Dick Hennagir. Dick said, ‘He is probably trying to scare us.’ That was all that was said. * * * I don’t remember where the car came to rest because I was unconscious.”

This is the only testimony as to what occurred.

We have set out these details from plaintiff’s evidence as there was none on behalf of defendants. The court directed verdict for defendants on their motion at the end of plaintiff’s case.

I. Was the evidence sufficient to go to the jury on the issue of recklessness? That is the real question posed by this appeal. Our “guest statute” (section 321.494, Code, 1946) is familiar to the profession. It permits recovery by a guest for damages resulting from “reckless operation” of the motor vehicle, in lieu of his former common-law right based on negligence.

On a motion for directed verdict the evidence must be viewed in the light most favorable to the one against whom the motion is directed. Odegard v. Gregerson, 234 Iowa 325, 329, 12 N.W.2d 559. Plaintiff was entitled to every legitimate inference from the facts shown. Degelau v. Wight, 114 Iowa 52, 55, 86 N.W. 36. He was entitled to have taken as established every fact which his evidence fairly tended to prove. Hartman v. Chicago G. W. Ry. Co., 132 Iowa 582, 584, 110 N.W. 10. The evidence should have been given “the strongest interpretation in his favor.” Baker v. Langan, 165 Iowa 346, 359, 145 N.W. 513, 518. He was 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., 173 Towa 579, 581, 151 N.W. 470, 471.

In one of our recent decisions we said: “The established rule is tlial before a court is warranted in directing a verdict, every fact favorable to the party against whom the verdict is asked, and which the evidence tends to prove, must be conceded.” (Italics supplied.) Comfort v. Continental Casualty Co., 239 Iowa 1206, 1208, 34 N.W.2d 588, 589.

“Even where evidence is undisputed, if different inferences may reasonably be drawn from it, it is for the jury to say what inferences shall be drawn, and they may be guided to their conclusion by the rule as to the burden of proof.” Fort Dodge. Hotel Co. v. Bartelt, 1941, 8 Cir., Iowa, 119 F.2d 253, 259.

“The court, however, is not at liberty to select one of various inferences that may be drawn from the evidence, and upon that determine the case as upon a question of law7. It is for the jury, and not the court, to determine what inference is to be deduced from the facts proven.” Olson v. Southern Surety Co., 201 Iowa 1334, 1343, 208 N.W. 213, 217.

“The plaintiff is, of course, entitled to have the benefit of all favorable inferences which reasonably may be drawn from the evidence.” Russell v. Turner, 1945, 8 Cir., Iowa, 148 F. 2d 562, 565.

Of course, against the rule thus variously stated we must balance the fact that the burden is on plaintiff to prove defendant’s recklessness. But this does not mean he must negative every possibility that might relieve the operator of the ear from the charge of recklessness. White v. Center, 218 Iowa 1027, 1032, 1033, 254 N.W. 90.

II. We need not review the numerous opinions that define recklessness. That it is something more reprehensible than mere negligence is self-evident. The early definition in Siesseger v. Puth, 213 Iowa 164, 182, 239 N.W. 48, 54, though sometimes elaborated, has not been materially improved on. We there said the legislature intended the word “reckless” to mean “without heed of or concern for consequences.” “To be ‘reckless,’ one must be more than ‘negligent.’ Becklessness may include ‘wilfulness’ or ‘wantonness,’ but if the conduct is more than negligent, it may be ‘reckless’ without being ‘wilful’ or ‘wanton,’ but to be reckless in contemplation of the statute * * * ■ one must be more than negligent.” The definition concludes, “Recklessness implies ‘no care, coupled with disregard for consequences.’ ”

We are conscious that this and similar language has been used many times since Siesseger v. Puth was decided. There has been no essential departure from it. It has the merit of being abstract — a necessary quality, since it must be applied to widely differing facts. The case here involves controversy not over the definition but over its. application to the facts shown.

Defendant-appellees argue that for the case to have been submitted to the jury would have constituted an application of the doctrine of res ipsa loquitur. We cannot agree with this contention. It may be true that only the defendant, driver knows the real cause. But vre cannot say no reasonable inference is suggested by the movement of the car with him at the wheel. It may be added that the doctrine of “res ipsa” has been applied in cases comparable to this. See Fenstermacher v. Johnson, 138 Cal. App. 691, 32 P.2d 1106, citing Crooks v. White, 107 Cal. App. 304, 290 P. 497, and Ireland v. Marsden, 108 Cal. App. 633, 291 P. 912. We have held otherwise, however. Phillips v. Briggs, 215 Iowa 461, 245 N.W. 720.

But tbougb the doctrine of res ipsa may not apply, it was not for tbe court to imagine possible explanations other than the obvious one of recklessness. The day was clear and bright, there was no other vehicle in sight, the terrain was flat, there is no evidence of any unusual street condition, the car was apparently under the driver’s complete control a matter of seconds before, the “accident,” no diverting circumstances are shown. When the ear started to swerve one of the passengers said to the other “He is probably trying to scare us.” That was the natural explanation tliat came to the mind of one witness as a part of the res gestae. It is a reasonable one under this record. As was said in White v. Center, supra (218 Iowa at page 1038) :

“We have no evidence on the part of the defendant, and, if we are to indulge the imagination and conjure possibilities, there is practically no limit to which we may not go. * * * If, before the plaintiff can make out a case, he must negative every possibility which might relieve the defendant from liability, it would be practically impossible to establish a case of negligence or recklessness against the driver of any automobile. Surely, this is not the law.”

Neither court nor jury has any way to learn the mental attitude of the driver except by inference from his conduct. As said in Mescher v. Brogan, 223 Iowa 573, 581, 272 N.W. 645, 650: “It is the actions and conduct ® * * that measure the degree of care and determine whether or not one is proceeding « * « with a heedless disregard for * * ° the rights of others.”

Defendants would have us hold there was no evidence here, as to the driver’s “actions and conduct” from which an inference of recklessness could be drawn. This we cannot do. The movement of the car, under the record presented, was some evidence of the conduct of the driver. This is not to say “res ipsa loquitur.” It would be just as true if the car had never struck the pole— if there had been no “accident.”

We have said that while no presumption of negligence arises from the mere fact of injury, “such presumption may and often does arise from the nature of the cause or manner of the injury.” Cahill v. Illinois Central R. Co., 148 Iowa 241, 246, 125 N.W. 331, 332, 28 L. R. A., N. S., 1121.

The statute creates liability for injury due to “reckless operation” of the car. Certainly the jury could have found under this record that the car was being operated by defendant Hildebrand. And whether such operation was reckless was clearly a jury question.

We have examined all the cases cited by defendant in support of the court’s ruling. Our decision here does not run counter to the ruling in any of them.

III. Plaintiff argues the court erred in not permitting him to testify as to why defendant Hildebrand drove off the traveled portion of the street. No offer of proof was made upon which- prejudice could be predicated. Furthermore, the matter sought to be elicited could only have been a conclusion. If based on facts, they might have been admissible but not the conclusion.

There was no error in the ruling.

IY. Defendants urge that “plaintiff, by voluntarily riding upon the running board, assumed the risk incident thereto.” The proposition is unsound. The doctrine of assumption of risk originated in the relation of master and servant and similar contractual situations. See discussion and citations in Edwards v. Kirk, 227 Iowa 684, 288 N.W. 875, including White v. McVicker, 216 Iowa 90, 246 N.W. 385, and Stingley v. Crawford, 219 Iowa 509, 258 N.W. 316.

We need not trace the development of the doctrine and its application to other situations. It is sufficient to say we know of no ease that would warrant its application here by either court or jury.

When plaintiff mounted the running board there was no apparent or threatened danger such as almost immediately afterward developed; and when it did threaten plaintiff had no reasonable alternative offered him by which to avoid it.

For the error in sustaining defendants’ motion for directed verdict the case is reversed. — Reversed.

Bliss, O. J., and OlivER, Garfield and Mulboney, JJ., concur. Wennerstrum, Hale, Mantz, and Hays, JJ., dissent.