I find myself unable to agree with the majority and respectfully dissent.
The majority hold that the evidence warranted submission of the case to the jury, but confess it is a close question.
This tragedy occurred at 1 o'clock in the morning. It had been raining and all agree that visibility was poor. In the Anderson car were six people, three in the front seat and three in the rear. It was being driven in a westerly direction on federal highway No. 18, a paved road 18 feet wide. The occupants of this car had been drinking beer at a tavern. As they proceeded westerly Miss Despard asked the driver to stop as she desired to answer a call of nature. The driver did not stop, and she insisted that he stop. When the car reached a point east of Nora Springs, the car was stopped to the right of the center line of the pavement. There is some dispute as to where the right wheels of the car were, some witnesses place the wheels 2 inches off the pavement, others place them 5 inches on the pavement. All agree that the main part of the car was on the pavement. It was about 300 feet to the filling station, the first building with lights. The highway is on a constant decline from the brow of the hill to the filling station, a distance of 870 feet. That the elevation at a point about midway down the decline is 9 or 10 feet lower than at the brow of the hill. That the *Page 178 brow of the hill is about at the same elevation as the street lights, and the lights would not therefore have helped one to see this parked car on the paved highway. Three of the occupants of the Anderson car got out, Martin stood near the front of the car on the shoulder, Ford near the rear, Miss Despard stood back of the car. There is a dispute as to her exact location, but she was on the pavement in the rear of the Anderson car. Whether she concealed the rear light is a question not definitely answered in the evidence. The front lights and the rear taillight were burning.
The defendant drove a 1929 Model A Ford. He was coming from the east over the brow of the hill. The testimony is that he was driving at a rate of 35 miles an hour, but the physical facts show that he could not have been driving that fast, because he ran into the rear of the Anderson car which did not have its brakes on and only shoved the Anderson car ahead about 4 feet. Defendant was driving in a straight line.
The majority rightly state the law when they say, "For one to be guilty of manslaughter because of the operation of a motor vehicle, the operation thereof must be such as to constitute wanton and reckless disregard and indifference to the safety of others."
"Wanton and reckless disregard." Where in this record is there any such evidence?
It was a rainy night, the pavement was wet, the rear of the Anderson car was covered with dirt, even the taillight. The speed was 35 miles per hour, no weaving from side to side. In a straight line the defendant drove his car. Could he have possibly anticipated a car parked on the highway? And if he could no one will claim that he could have had any idea that a woman would be standing or squatting back of the car, in front of or near the taillight. The lower court submitted the case on the theory that the defendant had violated Code section 5029, "the assured clear distance ahead statute." Maybe he was guilty of negligence, but that is not sufficient, he must have been reckless, and there must be evidence of that in order to submit the *Page 179 case to the jury. If this was a civil action, commonly known as a guest case, would this court have said that it was a question for the jury upon this record, as to whether the driver was reckless or not? If they would, then I do not read correctly our guest cases. Siesseger v. Puth, 213 Iowa 164, 239 N.W. 46; Welch v. Minkel, 215 Iowa 848, 246 N.W. 775; Wion v. Hayes, 220 Iowa 156, 261 N.W. 531.
The Anderson car was not stopped on account of necessary repairs. It was an inexcusable stopping. Anderson had had opportunities and safe places to stop before, and he had safe places ahead of him.
The defendant violated no speed standard unless it be the assured clear distance ahead statute, and a violation of that statute has never been held by this court to constitute an unlawful act or reckless conduct and a reckless indifference to the safety of others.
Many cases are cited, I have read them all, and all of them are based on entirely different facts than the case at bar.
The majority say that a reversal of this case would overrule the case of State v. Biewen, 169 Iowa 256, 151 N.W. 102. Again I cannot agree. In the Biewen case it was daylight, the view was unobstructed for better than 300 feet. The defendant in that case did not claim he could not see the child. He drove over the child and never stopped. In the case at bar, it was a dark rainy night, with the back of the Anderson car splattered with mud. There was a woman behind that car, and she may have been in front of the taillight. Visibility was poor. It is hard for me to see how the Biewen case can be cited as authority for this case.
I come now to the question of intoxication. The record is not in dispute. There is some evidence the defendant had had intoxicating liquors, but no one says he was intoxicated. In fact the court instructed the jury "that there was no evidence in the case that the defendant was operating his motor vehicle while in an intoxicated condition." The court then told the jury that the evidence in regard to intoxicating liquors was admitted *Page 180 for the sole purpose of letting the jury determine "whether his mind was in any wise affected by intoxicants."
The evidence of witnesses was that they had smelled the breath of the defendant after the accident, and they recognized the odor of alcohol. Here we have a record where the court finds that the defendant was not intoxicated, and yet under this instruction the jury was permitted to speculate as to whether he had enough liquor to impair his judgment. With this I cannot agree. As I understand our cases the definition for intoxication is impairment of judgment, and since in this case there is no evidence of intoxication it necessarily follows that there is no evidence that his drinking impaired his judgment. I would reverse the case.
RICHARDS, J., joins in this dissent.