Anderson v. Anderson

• Decision Date: 04 April 1939
• Docket Number: 6575
• Citation: 285 N.W. 294,69 N.D. 229
• Court: North Dakota Supreme Court

285 N.W. 294

69 N.D. 229

O. V. ANDERSON, Respondent, v. A. C. ANDERSON, Appellant

No. 6575

Supreme Court of North Dakota

April 4, 1939

Syllabus by the Court.

1. Failure of a driver of an automobile to slacken speed because of protest by a guest is no evidence of negligence or wantonness on the part of the driver, and in an action brought by the guest, based solely on the alleged gross negligence of the driver, the driver was entitled to an instruction to this effect.

2. In the case at bar it is held : That because determination of the alleged gross negligence of the driver was a close question of fact, the refusal of the trial court to instruct the jury as to the lack of such probative effect in the protest against speed constituted reversible error.

Appeal from District Court, Ward County; John C. Lowe, Judge.

Action under the automobile guest statute by O. V. Anderson against A. C. Anderson for injuries sustained in an automobile accident while the plaintiff was riding as a guest of the defendant. From an order denying the defendant a new trial the defendant appeals.

Order reversed.

Motorist's failure to slacken speed of automobile because of protest by guest was no evidence of negligence or wantonness on the part of motorist, and motorist was entitled to an instruction to that effect in action against him by guest under the automobile guest statute. Laws 1931, c. 184, § 2; Comp.Laws 1913, § 7283.

Nestos & Herigstad (Sullivan, Fleck & Sullivan, of counsel) for appellant.

Ben A. Johnson, for respondent.

Burr J. Nuessle, Ch. J., and Christianson, and Morris, JJ., concur. Burke, J., not having been a member of court at time of submission of cause, did not participate.

OPINION

BURR

The plaintiff and defendant are father and son. March 5, 1936, the defendant, the son, invited his father and another to drive with him as his guests on the highway from Minot to Stanley in a car owned and driven by the son. On this trip there was an accident in which the plaintiff suffered injuries. The father sued the son, charging that the accident was caused and the injuries sustained because of the gross negligence of the son.

At the close of the plaintiff's case the defendant moved for the dismissal of the action, which motion being denied, was renewed at the close of the entire case and again denied.

The jury returned a verdict for the plaintiff and the defendant moved for judgment notwithstanding the verdict or for a new trial, basing his motion on the ground of the insufficiency of the evidence to justify the verdict, irregularities in the proceedings of the jury, and excessive damages appearing to have been given under the influence of passion and prejudice.

This motion was denied and defendant appeals, specifying as error the action of the court in denying his motion for dismissal of the action at the close of the case and denying his motion for judgment notwithstanding the verdict or, in the alternative, for a new trial, and that:

"The court erred in refusing to give the following instructions to the jury as requested by the defendant:

"I charge you that the protest of the automobile guest, if any shown in this case is no evidence of negligence or wantonness on the part of the driver."

Owing to the disposition made of this case, it will not be necessary to refer to the alleged irregularity on the part of the jury nor to the question of passion and prejudice. Even if the matters alleged could be heard and determined now, there is no probability that like incidents would occur on a new trial.

As the plaintiff was riding as a guest, he had no right of recovery against the defendant unless the injuries he sustained proximately resulted "from the intoxication, wilful misconduct, or gross negligence" of the defendant, and the burden is "upon the plaintiff to establish that such . . . gross negligence was the proximate cause of such . . . injury or damage."

The term "gross negligence" is not only defined by statute, but it has also been explained and applied by this court in numerous cases. As pointed out in Rubbelke v. Jacobsen, 66 N.D. 720, 722, 268 N.W. 675, 676, "'"Gross negligence" is, to all intents and purposes, no care at all. It is the omission of the care which even the most inattentive and thoughtless seldom fail to take of their own concerns. It evinces a reckless temperament. It is a lack of care which is practically wilful in its nature.'"

In Jacobs v. Nelson, 67 N.D. 27, 268 N.W. 873, we show that: "Despite the statutory division of negligence into degrees, the care that will in a given case relieve a party from the imputation of gross negligence, or what omission of duty will amount to gross negligence is primarily a question of fact and does not become a question of law unless it is clear that but one conclusion can be drawn from the undisputed facts. If the undisputed facts are of such a nature that reasonable minds may differ as to whether the omission amounted to gross negligence or ordinary negligence, the question of the degree becomes a question for the jury."

The charge of gross negligence is based upon two primary facts -- the icy condition of the highway at the time and place of the accident, and known to the defendant, and his manner of driving, particularly with reference to...