Bogen v. Bogen
| Decision Date | 07 January 1942 |
| Docket Number | 745. |
| Citation | 18 S.E.2d 162,220 N.C. 648 |
| Parties | BOGEN v. BOGEN. |
| Court | North Carolina Supreme Court |
See also, 219 N.C. 51, 12 S.E.2d 649.
Civil action to recover damages for personal injuries resulting from alleged negligence of the defendant.
Plaintiff is the wife of the defendant. They live in Columbus, Ohio. On the night of August 14, 1937, they started on a pleasure trip which was to extend through North Carolina to Washington, D C., to Philadelphia and thence back to Columbus. They were traveling on an automobile owned and operated by the defendant. On August 17, in or near the village of Efland North Carolina, defendant's automobile collided with an automobile being operated by one Murray. As a result plaintiff received certain physical injuries.
Plaintiff offered evidence tending to show that the collision was proximately caused by the negligent manner in which the defendant was operating his automobile. She testified that he was at the time driving from 60 to 70 miles per hour and that he was not looking and did not see the other car until she called it to his attention.
She further testified that on Saturday night they drove from Columbus to Cincinnati during which time she made strenuous remonstrance concerning his manner of driving; that they drove only about 25 miles on Sunday and that during Monday and Tuesday up until the time of the wreck he was driving in such a reckless manner that she remonstrated with him repeatedly; that his only reply was that so long as he was driving the automobile he was going to drive it to suit himself; that on most of the trip they drove from 60 to 70 miles per hour and on one occasion he raced with another car. She likewise testified that whenever he is driving he always looks at the scenery instead of at the road; that his manner of driving generally is such that when he is driving she has to protest every day out of three hundred and sixty five in a year and that when she protested he would always reply that when he was driving he would drive to suit himself.
Issues were submitted to and answered by the jury in favor of the plaintiff. From judgment thereon defendant appealed.
Cooper & Sanders, of Burlington, and Graham & Eskridge, of Hillsboro, for appellant.
Bonner D. Sawyer, of Hillsboro, and George M. Austin, of Columbus, Ohio, for appellee.
Is a guest passenger on an automobile guilty of such negligence as will bar recovery for injuries received as a result of the negligence of the driver when it appears that she knew, before becoming a passenger, that the driver was in the habit of operating his automobile in a reckless manner at an excessive speed and without keeping a proper lookout? This is the decisive question presented by this record and, in this jurisdiction, it is one of first impression. That such conduct on the part of a passenger would warrant an affirmative answer to the issue of contributory negligence was held in Taylor v. Caudle, 210 N.C. 60, 185 S.E. 446. However, in that case the evidence was conflicting requiring its submission to the jury. The exact question here presented was not discussed or decided.
This court has held also that under given circumstances it becomes the duty of the passenger to protest and remonstrate, and, if feasible, to quit the journey, and that his failure so to do is evidence of contributory negligence. These cases, represented by King v. Pope, 202 N.C. 554, 163 S.E. 447; Norfleet v. Hall, 204 N.C. 573, 169 S.E. 143; York v. York, 212 N.C. 695, 194 S.E. 468, are not directly in point. In none was it made to appear that the passenger began the journey with knowledge that the driver was prone to operate an automobile in a negligent or reckless manner.
Hence, we must look to the reason of the thing and arrive at a logical conclusion under well recognized principles of law applicable in negligence cases, aided as we may be by pertinent decisions in other jurisdictions. In so doing there are cases in this and other jurisdictions which may be considered by way of analogy.
Where the owner of an automobile hires or lends it to another, knowing that the latter is an incompetent, careless or reckless driver and likely to cause injury to others in its use, the owner is liable for injuries caused by the borrower's negligence, on the ground of his personal negligence in entrusting the automobile to one who he knows is apt to cause injury to another in its use. Rush v. McDonnell, 214 Ala. 47, 106 So. 175.
Liability in such cases depends on common law principles, upon the ownership of the automobile, the incompetency of the bailee to whom its operation is entrusted to operate it properly and safely, the owner's timely knowledge of such incompetence, and injury to a third person resulting proximately from the incompetence of the bailee. Rush v. McDonnell, supra.
The owner must not let or loan his automobile to a person known to him to be an incompetent, careless or reckless driver; Taylor v. Caudle, supra; Cook v. Stedman, 210 N.C. 345, 186 S.E. 317; People v. Ingersoll, 245 Mich. 530, 222 N.W. 765; Annotations 36 A.L.R. 1148, 68 A.L.R. 1013 and 100 A.L.R. 923; Priestly v. Skourup, 142 Kan. 127, 45 P.2d 852, 100 A.L.R. 916; 42 C.J., 1078, 2 Blashfield Cyc. Auto L. & P., Perm.Ed., 1332; or given to habitual and excessive use of intoxicants; Taylor v. Caudle, supra; Crowell v. Duncan, 145 Va. 489, 134 S.E. 576, 50 A.L.R. 1425; an immature infant, Tyree v. Tudor, 183 N.C. 340, 111 S.E. 714; 68 A.L.R. 1014; Rush v. McDonnell, supra; Paschall v. Sharp, 215 Ala. 304, 110 So. 387; Perry v. Simeone, 197 Cal. 132, 239 P. 1056; Naudzius v. Lahr, 253 Mich. 216, 234 N.W. 581, 74 A.L.R. 1189; Annotations 36 A.L.R. 1150 and 100 A.L.R. 926; or an unlicensed driver; Annotations 36 A.L.R. 1152, 68 A. L.R. 1015 and 100 A.L.R. 926. He does so at his own peril and is liable for any resulting injury or damage.
He is not held liable under the doctrine of imputed negligence but for his independent and wrongful breach of duty in entrusting his automobile to one who he knows or should know is likely to cause injury.
Thus it appears that it is generally accepted law that had plaintiff owned the automobile on which she was a passenger on the day she was injured and permitted defendant to operate it under the circumstances admitted by her, she would have been liable for any injury inflicted upon any passenger thereon or upon any other third party.
Here, plaintiff became a guest upon the automobile of defendant, knowing at the time that he habitually drives in a reckless manner and at a high rate of speed without keeping a proper lookout and that he would ignore any protest or remonstrance she might make, and then failed to abandon the journey and return home on any one of the numerous occasions she had opportunity so to do after his continued recklessness became apparrent. The analogous conclusion that she thereby committed a primary act of negligence conclusively evidencing a want of due care for her own safety contributing to her own injury seems to us to be inescapable.
That this is the necessary result of such conduct is sustained by the authorities in other jurisdictions. Some treat it under the doctrine of assumption of risk and some as contributory negligence. (See Taylor v. Caudle, supra, where it is treated as contributory negligence) By whatever name it may be called, the consensus of opinion expressed in these authorities is to the effect that one who voluntarily places himself in a position of peril known to him fails to exercise ordinary care for his own safety and thereby commits an act of continuing negligence which will bar any right of recovery for injuries resulting from such peril.
A guest, entering an automobile, assumes the dangers incident to the known incompetency, inexperience and driving habits of the driver. 4 Blashfield, Cyc. of L. & P., Perm.Ed., § 2512, p. 331 and cases cited in notes. It is the general rule that a guest or passenger in an automobile takes the host with his defects of skill and judgment and his known habits and eccentricities in driving. 4 Blashfield, Cyc. of L. & P., Perm.Ed., § 2393, p. 197.
"When a guest enters an automobile with the knowledge that the driver is incompetent or inexperienced *** he takes the chances of an accident, and, in case an accident occurs arising from such known incompetency, inexperience, or recklessness, he cannot recover against the driver; for in such case he assumes the risk of the accident by inciting the driver's predisposition to operate the vehicle in an irresponsible manner." 4 Blashfield Cyc. of L. & P., Perm.Ed., § 2512, p. 333 and cases cited. "So, if a guest, with knowledge of the defective condition of the car and appreciation of the hazards involved, voluntarily assents to ride therein, he will be precluded from recovery for injuries in an accident resulting from the defects of which he has then been cognizant." 4 Blashfield Cyc. of L. & P., Perm.Ed., § 2515, p. 336; Clise v. Prunty, 108 W.Va. 635, 152 S.E. 201; Pawlowski v. Eskofski, 209 Wis. 189, 244 N.W. 611; Knipfer v. Shaw, 210 Wis. 617, 246 N.W. 328, 247 N.W. 320.
The guest cannot acquiesce in negligent driving and retain a right to recover...
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