Dakins v. Black

• Citation: 261 N.W. 870,195 Minn. 91
• Decision Date: 05 July 1935
• Docket Number: No. 30270.,No. 30271.,30270.,30271.
• Parties: DAKINS v. BLACK. SEBRING v. SAME.
• Court: Supreme Court of Minnesota (US)

261 N.W. 870

195 Minn. 91

DAKINS v. BLACK.

SEBRING v. SAME.

No. 30270.

No. 30271.

Supreme Court of Minnesota.

July 5, 1935.

Appeal from District Court, McLeod County; C. M. Tifft, Judge.

Action by Howard Dakins as special administrator of the estate of Dorothy Dakins, deceased, and by Floyd Sebring against S. F. Black. Verdicts were returned for plaintiff in each case, and, from orders denying motions for new trial, defendant appeals.

Reversed.

Joseph P. O'Hara, of Glencoe, for appellant.

N. J. Jones, of Britton, S. D., and Sam G. Anderson and Leonard C. Klammer, both of Hutchinson, for respondents.

I. M. OLSEN, Justice.

Two actions, one by Howard Dakins, as special administrator of the estate of Dorothy Dakins, deceased, to recover damages for the death of Dorothy Dakins, and one by Floyd Sebring to recover damages for personal injuries, claimed to have been caused by the gross negligence of the defendant, S. F. Black, in operating an automobile. The actions were tried together and a verdict was returned in favor of the plaintiff in each case. Defendant thereafter moved in each case for judgment notwithstanding the verdict, or if that be denied then for a new trial, and appeals from an order denying the motion in each case.

On April 23, 1933, defendant, his wife, Dorothy Dakins, and Floyd Sebring, residents of Brookings, S. D., went on a pleasure trip from Brookings to Sioux Falls, S. D. The defendant owned and drove the Chevrolet touring car in which they traveled. They arrived at Sioux Falls about noon and spent the afternoon and part of the evening in that city. Sebring and Dorothy Dakins were riding with Mr. and Mrs. Black as their guests. The distance from Brookings to Sioux Falls is about 60 miles. The party started from Sioux Falls for home about 9 o'clock in the evening, defendant driving the car, and his wife sitting with him in the front seat. Miss Dakins and Sebring sat in the rear seat. Miss Dakins was 18 years of age and a student at the State College at Brookings. Sebring was a student at the same college. Miss Dakins stated that she wished to get back to Brookings by 10:30 o'clock. The road leads in a northerly direction from Sioux Falls to Brookings. For about 30 miles out of Sioux Falls the road was paved. From there on until about 3 miles from Brookings it was a graveled highway about 24 feet wide. There was some loose gravel in the center of the road and on the edges thereof. As indicated on the photographs and by the testimony, the loose gravel was not deep or piled up so as to present any serious obstruction to cars passing each other or crossing from one side of the road to the other. On each side of the central part of the road there was a track or lane of travel, well beaten and smooth, except for a slight "washboard" effect from the passage of trucks and heavy vehicles. The night was dark. Defendant was driving at a speed of 50 to 55 miles an hour. After reaching the end of the pavement, he continued to travel in the lane on his right side of the road. When he had proceeded about 14 miles on the graveled road, an object became visible about 200 feet ahead of them, which turned out to be a cattle truck, without lights, parked in his lane of travel. The color of the truck made it difficult to see in the situation. He pressed easily on the brakes to slow down, and then turned his car to the left to pass the truck. The car was still going at a high rate of speed, and, when the front wheels and part of the car were over the center of the road, the rear wheels skidded or slued to the right in the loose gravel and the rear of the car crashed into the rear left corner of the truck and was wrecked and practically demolished. Up to the time of the accident defendant had operated the car with care. He had slowed down at curves in the highway and when meeting cars with bright lights. None of the occupants of the car had made any comment on or objection to his manner of driving, or to the speed. His wife had at times called his attention to the fact that they were approaching a curve in the road. Except as to the speed of the car, there is nothing to show that the car was not properly operated. The statute of South Dakota limits the lawful speed of cars on the highways to 40 miles per hour. It may be noted that the evidence shows that the parked truck had on the rear thereof two small so-called reflectors. None of the occupants of defendant's car saw any reflection therefrom. Dorothy Dakins sustained injuries in the accident which caused her death. Sebring suffered numerous cuts and bruises. Defendant's wife also suffered some injury, and was rendered unconscious for a short time.

1. The primary question for consideration is whether there is any evidence to sustain recovery in these cases on the ground of gross negligence on the part of defendant. The so-called guest statute of South Dakota (Rev. Code 1919, § 801, as amended by Laws 1933, c. 147) provides as follows: "Provided that no person transferred by the owner or operator of a motor vehicle as his guest without payment for such transportation shall have cause of action for damages against such owner or operator for injury, death or loss, in case of accident, unless such accident shall have been caused by the gross negligence or wilful and wanton misconduct of the owner or operator of such motor vehicle and unless such gross negligence or wilful and wanton misconduct contributed to the injury, death or loss for which the action is brought."

The actions here are governed by this South Dakota statute. The trial court submitted to the jury the issue as to gross negligence. Willful and wanton misconduct was properly not submitted.

In Lothian v. Western Union Telegraph Co., 25 S. D. 319, 126 N. W. 621, the court defined "gross negligence" as "the want of slight care and diligence" — citing 29 Cyc. 423.

In Gilbert v. Bryant, 125 Neb. 731, 251 N. W. 823, 825, the court defined "gross negligence" as follows: "Gross negligence means great or excessive negligence; that is, negligence in a very high degree. It may be said that it indicates the absence of even slight care in the performance of a duty, and such, we think, is the meaning intended by the legislature." Sheehy v. Abboud, 126 Neb. 554, 253 N. W. 683, has the same definition.

In Farmers' Mercantile Co. v. Northern Pac. Ry. Co., 27 N. D. 302, 146 N. W. 550, 552, the court said: "`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."

In Shaw v. Moore, 104 Vt. 529, 162 A. 373, 374, 86 A. L. R. 1139, it is said: "Gross negligence is equivalent to the failure to exercise even a slight degree of care." See 45 C. J. § 36, pp. 667, 668 and notes.

The trial court instructed the jury as follows: "Negligence cannot be considered `gross' unless evidenced by entire failure to exercise care, or by the exercise of so slight a degree of care as to justify the belief that the person on whom care was incumbent was indifferent to the interest and welfare of others. The negligence, if any, of the driver of the automobile, Mr. Black, cannot be considered `gross' unless evidenced by entire failure to exercise care, or by the exercise of so slight a degree of care as to justify the belief that Mr. Black was indifferent and inattentive to the interest and welfare of those in his...