Billingsley v. McCormick Transfer Co.

• Citation: 58 N.D. 921,228 N.W. 427
• Decision Date: 24 December 1929
• Docket Number: No. 5723.,5723.
• Parties: BILLINGSLEY v. McCORMICK TRANSFER CO. et al.
• Court: United States State Supreme Court of North Dakota

58 N.D. 921

228 N.W. 427

BILLINGSLEY

v.McCORMICK TRANSFER CO. et al.

No. 5723.

Supreme Court of North Dakota.

Dec. 24, 1929.

Syllabus by the Court.

Where one is merely a guest or passenger in an automobile and has no control over or right to direct the car, the negligence of the driver is not attributable to him, so as to prevent recovery for injuries received in a collision between this car and another vehicle.

Where one is a mere guest or passenger in an automobile and has no control over the same, but by his own act in overcrowding the car, or hampering the movements of the driver, or interfering with the vision, or similar acts, contributes to the causes of the collision, it becomes a question for the jury to determine whether such passenger is guilty of contributory negligence so as to preclude recovery.

Where there is a collision between the car in which one is such guest or passenger and another vehicle, such passenger cannot recover from the owner or driver of the other car for injuries sustained in a collision between the two cars if the negligence of the driver of the car in which he is passenger is the cause of the collision, even if the driver of the other car be guilty of contributory negligence.

Where the issues in the case, and the evidence introduced, raise the question of the negligence of the driver of the car in which such person is a passenger in order to show that such negligence was the proximate cause of the collision, it is error for the court to fail to instruct the jury specifically as to the law governing such driver in the matter of lights, when such instruction has been requested properly, and this failure of such driver to have the required lights is the basis, or one of the bases, of such claim of negligence.

Appeal from District Court, Cass County; A. T. Cole, Judge.

Action by Esther Billingsley against the McCormick Transfer Company and another. Judgment for plaintiff, and defendants appeal. Reversed, and new trial ordered.Conmy, Young & Burnett, of Fargo, for appellants.

Shure & Murphy, of Fargo, for respondent.

BURR, J.

This case is the companion of the Mike Billingsley Case against the same defendants argued at this term. The plaintiff is the sister of Mike Billingsley and was riding in his Ford coupe at the time of the collision. There were four in the coupe at the time-her brother Mike, who owned the car and on whose knee she was sitting, her brother Ted, the driver, and a cousin. While traveling on highway No. 10 from Moorhead, Minn., to their home at Linton, N. D., about 10:30 p. m. on June 3, 1928, they crashed into a truck or van, standing on the extreme right of the road a short distance east of the village of Tappen and facing westward. This plaintiff, as well as her brother Mike, were injured in the collision. Each brought a suit against these defendants. The defendant More was an employee of the transfer company, had charge of the van, and at the time of the collision was working as such employee.

It is not necessary to set out the testimony in detail. This plaintiff claims the van was standing on the road without lights or other warning signs and therefore the collision was caused by the negligence of the defendants. The defendants say that proper lights were displayed and that the collision was caused by the recklessness and carelessness of Mike Billingsley, and that in any event the plaintiff herself was guilty of contributory negligence. Such facts as are necessary to relate will be referred to in determining the law applicable to this case. This action and the companion case of Mike Billingsley against the same defendants were tried to the same jury at the same time. One charge was given, but separate verdicts were rendered. The jury found in favor of the plaintiff in each case, and the defendants have appealed. The appeal in the Mike Billingsley Case has been determined in another decision. See Billingsley v. Transfer Co., 58 N. D. ---, 228 N. W. 424.

[3] One major point argued by appellants is that the effect on Esther's case, of the collision being caused by Mike's negligence, was not submitted to the jury in a proper manner. The plaintiff was a passenger in her brother's car. That she was injured is established by the evidence. It is clear that if the collision were caused by the negligence of her brother, and not by the negligence of the defendants, she would have no cause of action against the defendants. Her cause of action would be against her brother.

While the brother Ted was driving the car, nevertheless he was doing so with the consent and under the direction of his brother Mike, and therefore his negligence would be the negligence of Mike. Mike was the owner of the car, had control of it and of the operator. On the basis of relationship of master and servant he was responsible. Vannett v. Cole et al., 41 N. D. 260, 170 N. W. 663;Ulman v. Lindeman, 44 N. D. 36, 176 N. W. 25, 10 A. L. R. 1440; 45 C. J. 1025. If the defendants had brought action against Mike Billingsley for damages to the van caused by the collision, charging him with negligence, it is probable he would have denied negligence on his part, and claimed the collision was caused by the negligence of the plaintiffs in that suit or that at least they were guilty of contributory negligence in not having lights displayed. In such case, if the jury found they were guilty of contributory negligence, they could not recover even though the collision was caused by the negligence of Mike Billingsley. Thus if the collision were caused by the negligence of Mike Billingsley, the plaintiff could not recover against the defendants even if the defendants themselves were negligent in not having lights displayed, unless it be one of that class of cases where a third person has an action against two or more parties because of injuries caused by a collision, when the collision was produced by the negligence of one of the parties concurring with the negligent act of the other party so that “two or more causes join, and by contemporaneous action produce a single injury,” thus making the author of each liable, “even though the author acted independently of each other.” See Asch v. Washburn Lignite Coal Co. et al., 48 N. D. 734, 186 N. W. 757. But if it be a fact that the defendants did not have lights displayed and that they were guilty of contributory negligence merely, nevertheless this would not be the foundation for an action against them by this plaintiff if the negligence of Mike Billingsley were the sole proximate cause of the collision. As stated in O'Neil v. Christian et al., 60 Mont. 460, 199 P. 706: “Negligence does not give rise to a cause of action unless it is the proximate cause of injury.” If the sole proximate cause was the negligence of Mike, and not the negligence of the defendants, then Esther, being a passenger in the car of her brother, would have a cause of action against him and not against the defendants.

In the charge there is no reference to the effect on the case of Esther Billingsley if the collision were caused by the negligence of Mike. The court charged several times that if Mike “was the sole cause of it then in that case the plaintiff Mike Billingsley would not be entitled to recovery either for personal damages or for damages to his automobile.” He then refers to the plaintiff and instructs in the matter of her contributory negligence-a matter which will be discussed later-and shows that she would not be entitled to recover if she were guilty of contributory negligence. He then instructs the jury that, if Mike were guilty of contributory negligence and this plaintiff were not, then “Esther Billingsley would be entitled to recover while Mike Billingsley would not be entitled to recover.” It is true that in a general statement the court charged the jury: “The burden of proof always lies upon the plaintiff in a case to establish his or her right to recover, by what is called a fair preponderance of the evidence. It is the duty lying upon Mike Billingsley in his individual capacity, and upon Esther Billingsley in her individual capacity, to prove by a fair preponderance of the evidence, if they are entitled to recover at all, that they are entitled to recover, and if you find that they have established that proof by a fair preponderance of the evidence either one or both of them, as to their right to recover, then the second question for you to consider is, what amount of damages is either one or both entitled to recover.”

And in a later portion of the charge he says: “If you find that the plaintiff Mike Billingsley is not entitled to recover, then you will take into consideration under the law as I have given it to you whether or not Esther Billingsley is entitled to recover, and if you find that Mike Billingsley is not entitled to recover, but that Esther Billingsley is entitled to recover, then determine upon the amount that she is fairly entitled to recover, and that is in the sound discretion and the best judgment of the jury.”

Later another portion of the charge states: “A party that comes into court and claims a right to recover against another, must prove that right by what is called a fair preponderance of the evidence. What we mean by a fair preponderance of the evidence is not the greater number of witnesses that have testified on one side or the other, nor does it mean the greater volume of testimony on one side or the other; it simply means when you have weighed, considered and compared it all together, you are to determine where the greater weight of the evidence, the more convincing testimony leads you, either as to the matter of the plaintiffs being entitled to recover, or not to recover.”

Again the court charged: “Upon the question of contributory negligence the burden of proof would lie upon the defendants and the same burden of proof as lies upon the plaintiffs in the first instance to prove their right to recover. In other words; if you...