Bolton v. Wells

• Decision Date: 06 June 1929
• Docket Number: No. 5661.,5661.
• Citation: 58 N.D. 286,225 N.W. 791
• Parties: BOLTON v. WELLS.
• Court: North Dakota Supreme Court

58 N.D. 286

225 N.W. 791

BOLTON

v.WELLS.

No. 5661.

Supreme Court of North Dakota.

June 6, 1929.

Syllabus by the Court.

A passenger in an automobile, present as a guest of the owner and driver of the car, is not engaged in a joint enterprise with the owner simply because the owner has invited him to come with him to attend the sessions of an organization of which both are members.

Where, under such circumstances, the driver of the car is guilty of negligence which causes injury to the guest, the guest is not guilty of contributory negligence because of the fact that he is present in the car and does not protest against the manner in which the car is driven, where the evidence shows the guest knew nothing about the speed maintained nor how the car was being managed.

Where there is evidence showing that the driver of an automobile was exceeding the speed limit while driving over icy roads and while so engaged took his gaze from the road and at the time of this momentary withdrawal of attention the car swerved, skidded and upset, causing injury to his guest, it was proper for the court to submit to the jury the question of whether under such circumstances the driver of the car was guilty of negligence.

It was not error for the court to refuse to instruct the jury that where the driver of a car uses his best judgment when confronted with an emergency he is not guilty of negligence, where the request for instruction fails to inform the jury that in such case it was necessary to show that the driver himself did not cause the emergency.

Appeal from District Court, Stutsman County; Fred Jansonius, Judge.

Action by Redmond A. Bolton against Alson Wells. Judgment for plaintiff, and defendant appeals. Affirmed.Conmy, Young & Burnett, of Fargo, for appellant.

Carr & Rittgers and P. W. Lanier, all of Jamestown, for respondent.

BURR, J.

This is an action to recover for injuries received in an automobile accident. The plaintiff alleges that on November 9, 1927, he was invited by the defendant to drive to Fargo with defendant in the defendant's car and as the guest of the defendant; that while on said trip and while the defendant was driving the car the plaintiff was injured by reason of the car going into the ditch and turning over, and that this accident was caused by the negligence of the defendant. Plaintiff claims that some of his ribs on the left side, together with his collar bone and breast bone, were broken, his left shoulder was crushed, his right shoulder and back badly injured, the ligaments in his shoulder, neck, back, side, and breast badly bruised and torn, and that as a result thereof he was put to the expense of hospital and medical treatment and medicine and has been permanently injured; that his doctors' bills amounted to $475 and his hospital bills to over $225; that he is an osteopath by profession and was rendered unfit to practice his profession; and all in all he was damaged in the sum of $10,000.

The defendant admits plaintiff was driving with him from Jamestown to Fargo, but claims that it was a joint enterprise, that the injuries which plaintiff sustained were caused by his own negligence, and that so far as the defendant was concerned he was not negligent and it was an unavoidable accident. The case was submitted to a jury, who returned a verdict in favor of the plaintiff in the sum of $7,000 and judgment for $7,052 was entered. During the trial, and at the close of the plaintiff's case, the defendant moved the court to dismiss the action for the following reasons: “First, that there is no testimony showing any negligence on the part of the defendant, Wells, proximately causing the accident and injury in question; second, the undisputed testimony shows the plaintiff to have acquiesced in the manner and method in which the defendant was driving the car; and third, the undisputed testimony shows the plaintiff to have been guilty of contributory negligence as a matter of law.” And this motion was renewed by defendant at the close of the entire case.

Defendant appeals from the order entering judgment, and from the judgment so entered setting forth 13 specifications of error. One specification alleges insufficiency of the evidence to justify the verdict, nine deal with instructions to the jury, two deal with the failure of the court to grant the motions for dismissal, and one is leveled at rulings in the introduction of testimony.

[1] There is practically no dispute in the evidence. Plaintiff was 59 years of age at the time of the accident, was postmaster at Jamestown, and an osteopath by profession. On the 9th of November, 1927, the defendant invited him as his guest with some others to drive to Fargo; the plaintiff was in the back seat, on the left-hand side of a four-door Packard sedan; on the 8th of November it had rained and sleeted, and, having been traveled upon while it was raining and sleeting and the day being cold, the road was covered with rough ice, making it difficult and dangerous to travel. The defendant was driving, and while driving at a rate of between 35 and 40 miles an hour over such roads and while in charge of the car the defendant turned his head to speak to those in the rear and took his gaze from the road, and at that moment the car swerved and skidded into a ditch, heading opposite to the way it was going, turned over, and the plaintiff was thrown against the steel frame of the car and the other passengers in the back seat came down on top of him. The plaintiff was rendered unconscious, several ribs were broken, both at the back and from the breast bone, the collar bone and breast bone were broken, muscles torn, shoulders wrenched, and the plaintiff has ever since been injured. Plaintiff was in the hospital the first time for seven or eight weeks and later was compelled to return to the hospital for another two weeks; he was unable to use either hand and had to be fed, and for some weeks it was not known whether he was paralyzed on one side. There is no question about the injuries to the plaintiff and that they are permanent. Plaintiff had been in good health prior thereto and able to carry on his profession as an osteopath; his earning capacity from that profession was at least $4,500 a year, and since that time he has been unable to do anything professionally. It is the claim of the defendant that because he and the plaintiff were both members of the same service club and driving to Fargo to attend a meeting of another club of the same order they were engaged in a joint enterprise; but the evidence shows the plaintiff was in the car at the invitation of the defendant, who, intending to drive to Fargo, invited the plaintiff to accompany him.

[3] The allegations of insufficiency of the evidence is based upon the claim that the evidence shows an unavoidable accident. The defendant himself admits that while driving over such icy roads at a high rate of speed he took his gaze from the road and turned his head to speak to the passengers in the rear and the accident occurred at that instant. There was no question but what the defendant by this act lost control of the car and the accident was the result of this loss of control. It was an accident which happened in an emergency caused by the defendant himself. The fact the plaintiff was a gratuitous guest does not relieve the defendant of the duty of exercising ordinary care to avoid personal injury to him. See Grabau v. Pudwill, 45 N. D. 423, 428, 178 N. W. 124. As said in Mitchell v. Raymond, 181 Wis. 591, 195 N. W. 855: “For a breach of such duty and consequent injury the host can be held for the resulting damages.”

The court submitted to the...