Barger v. Chelpon

• Decision Date: 13 June 1932
• Docket Number: 7143
• Parties: LEE BARGER, et al., Administrators of the Estate of Kate Govis, Deceased, Appellant, v. HARRY I. CHELPON, Respondent.
• Court: South Dakota Supreme Court

60 S.D. 66

243 N.W. 97

LEE BARGER, et al., Administrators of the Estate of Kate Govis, Deceased, Appellant, v. HARRY I. CHELPON,

Respondent.

South Dakota Supreme Court

Appeal from Circuit Court, Beadle County, SD

Hon. Alva E. Taylor, Judge

#7143—Reversed

McFarland & Kremer, Watertown, SD

Attorneys for Appellants.

Howes & Temmey, Chas. P. Warren, Huron, SD

Attorneys for Respondent.

Opinion Filed Jun 13, 1932

ROBERTS, Judge.

This action was instituted by the administrators of the estate of Kate Govis, deceased, to recover of the defendant damages for the death of the said Kate Govis, caused by the overturning of the defendant’s automobile.

The defendant, accompanied by the decedent and her brother, Pete Govis, was driving his automobile from Watertown to Huron. The accident occurred about 4 o’clock in the morning, July 6, 1926, on federal highway No. 14, about three miles east of Cavour. The negligence charged against the defendant was that he operated his car in a “negligent and careless manner” and “with wilful and wanton disregard of the rights and safety of his passengers”; that the defendant operated an automobile known to him to contain “defective parts and mechanism and many parts that were worn out”; and “that during the month of July, 1926, the said defendant was inexperienced in the use of an automobile for passenger purposes and had practically no experience in driving and operating an automobile at such time, and that said defendant was an unsafe driver and incapable of operating said automobile, in a safe, careful, and prudent manner, all of which was known to the said defendant during the times mentioned in the complaint.”

The only evidence given as to how the accident occurred was that of the defendant when he was called as an adverse witness. He was the only surviving witness to the accident; Pete Govis, an occupant of the car at the time of the accident, died a year or more later and prior to the time of trial. The defendant testified: “I was the driver of the car in which Kate Govis was riding on the night of the accident or early morning of July 6, and that was my car. I had it about two months or a little more. ... I didn’t know anything about the car, but I was trying to keep my car in as good condition as I could. I told the man to look and see if everything was all right. I didn’t know how to fix it. I had them check it for oil, gas and grease to see if everything was all right. It was a second hand car. ... There were no ruts, no heavy gravel and nothing wrong with the road. At that time and before the accident, coming down on the grade, part of the time I was talking with Kate and part I was singing. ... I don’t know anything about it. We tipped over and found ourselves in the ditch. I was in the car and Kate was out of the car and her brother was in the back seat; it began jumping up and down and I couldn’t hold it in the road. I couldn’t hold it. ... It went from the middle of the road to the left ditch. ... I tried to hold the car and couldn’t hold it in the road. I don’t know what I did then. I yelled, ‘Hang on.’” In reply to the question, “Do you think something was wrong with the car?” the witness answered, “I don’t know. I couldn’t hold it.”

The defendant at the conclusion of the testimony of the plaintiff made a motion for a directed verdict which was granted by the court, and judgment was entered for the defendant. Plaintiffs appeal from the judgment and an order denying motion for new trial.

There was no direct evidence as to the rate of speed of the car at the time of the accident, and no evidence to sustain the allegation that the car was mechanically defective. The condition of the automobile after the accident does not appear in the record. There is no showing of negligence, unless the doctrine of res ipsa loquitor is applicable. The contention of the plaintiffs is that the circumstances of the accident were such as to justify the application of this doctrine.

The fact that decedent was a gratuitous guest did not relieve defendant of the duty of exercising ordinary care to avoid injury. The great weight of authority sustains the rule that the owner of an automobile is liable for injury, through the operation of the car by him, to an invited guest, if he fails to exercise care reasonably commensurate with the nature and hazard attending such mode of travel, not unreasonably to expose the guest to danger and injury by increasing such hazard. Cleary v. Eckart, 191 Wis. 114, 51 ALR 576; Benjamin v. Noonan, 207 Cal. 279, 277 P. 1045; Bolton v. Wells, 225 N.W. 791; Bauer v. Griess, 105 Neb. 381, 181 N.W. 156; Avery v. Thompson, 117 Me. 120, 103 A. 4, LRA 1918D, 205, Ann. Cas. 1918E, 1122; see Annotations, 20 ALR 1008, and 65 ALR 952. In some jurisdictions it is held that one inviting another to ride in his automobile is not, in the absence of gross negligence, liable for injury to him by the overturning of the car. In this state there are no degrees of negligence, and the rule in those jurisdictions would have no application in this state.

The doctrine of res ipsa loquitur may be stated to be that, whenever a thing which has caused an injury is shown to have been under the control and management of the defendant charged with negligence, and the occurrence is such as in the ordinary course of events does not happen if due care has been exercised, the fact of the accident itself is deemed to afford sufficient evidence to support a recovery in the absence of any explanation by the defendant tending to show that the injury was not due to his want of care. 20 RCL 187. It does not mean that negligence can be assumed from the mere fact of an accident and injury, but the expression that the thing speaks for itself is a short way of saying that the circumstances attending upon the accident are in themselves of such a character as to justify a jury in inferring negligence as the cause of the injury. 2 Jones on Evidence, § 518. It is said that the facts of the occurrence warrant the inference of negligence, not that they compel such an inference; they furnish circumstantial evidence of negligence where direct evidence of it may be lacking, but it is evidence to be weighed, not necessarily to be accepted as such. Sweeney v. Erving, 33 S. Ct. 416, 57 LEd 815, Ann. Cas. 1914D, 905. It is the province of the court in the first instance to determine whether or not the circumstances are such as will, unexplained, permit the jury to draw the inference of negligence. Hughes v. Atlantic City & S.R. Co., 85 NJ Law, 212, 89 A. 769, LRA 1916A, 927. When all the evidence is submitted, the question for the jury is whether the preponderance is with the plaintiff. It is within the province of the jury to find for the defendant on plaintiff’s evidence, by discrediting the witnesses or otherwise acting within its proper realm, despite the fact that defendant offers no evidence and the trial court has held that the principle of res ipsa loquitur is applicable.

The doctrine has been applied in cases of injury to invited guests caused by the operation of automobiles. Huddy on Automobiles (8th Ed.) § 345; Berry on Automobiles (6th Ed.) § 723. The doctrine has been more frequently applied in cases against carriers of passengers than in any other class, but it has been held that there is no foundation for the limitation of the rule. The doctrine originates from the nature of the act; not from the nature of the relation between the parties, and consequently the rule is as applicable to automobile carriers without reward as to carriers for hire, Brown v. Davis, 84 Cal. App. 180, 257 P. 877; Crooks v. White, 107 Cal. App. 304, 290 P. 497.

The doctrine was applied where a truck operated by the defendant ran off the highway and collided with and damaged a building, and no other testimony was produced to prove negligent operation of the truck and in the absence of an explanation on the part of the defendant showing the exercise of ordinary care in its operation. Scovanner v. Toelke, 119 Ohio St. 256, 494; see also Zwick v. Zwick, 29 Ohio App. 522, 163 N.E. 917; Id., 119 Ohio St. 644, 166 N.E. 202.

It was applied in Chaisson v. Williams, 130 Me. 341, 156 A. 157, to a situation where an automobile went off the road...