I am constrained to dissent from the foregoing opinion. I think the ground upon which it reverses the judgment below is untenable. Such ground is in substance that the court failed to submit to the jury the claim of recklessness as made in the petition of plaintiff. *Page 168
I. It is very doubtful to say the least whether the petition pleaded recklessness as a ground of recovery and as distinguished from negligence.
This is not a "guest" case and a pleading of recklessness was not essential to plaintiff's recovery. What the plaintiff pleaded at this point was: "That the defendant driver was negligent inoperating the car at a speed that was reckless and that failed to have due regard for the use of the highway by others," etc. The use of the word "reckless" at this point was merely descriptive of the negligence which was directly charged. Surely the language of the petition will bear such a construction and the court was justified in adopting it.
II. There is not a line of evidence that supports the claim, if such, of recklessness. In the "guest" cases we have defined recklessness as distinguished from negligence and have held that the distinction between the two must be apparent to the court to justify its submission to the jury. Shenkle v. Mains, 216 Iowa 1324, 247 N.W. 635, and cases therein cited. The alleged recklessness is predicated in the petition upon excessive speed. The majority opinion expressly finds that the "automobiles were not traveling at a high rate of speed." These automobiles met at the top of a hill on a graveled road and their left wheels became locked as they met. The hill was the obstruction to the view of each of them. Otherwise either one court have avoided the accident. There is no detailed fact pleaded or proved, which discloses or tends to disclose recklessness as distinguished from negligence. All the detailed facts pleaded are pleaded in support of the claim of negligence. It seems to me that the instruction of the court was adequate and that it presented no prejudicial error. I would affirm the judgment.