Dale v. Jaeger

• Citation: 258 P. 1081,44 Idaho 576
• Decision Date: 28 July 1927
• Docket Number: 4773
• Parties: ARBIE M. DALE, Respondent, v. W. E. JAEGER, Appellant
• Court: Idaho Supreme Court

258 P. 1081

44 Idaho 576

ARBIE M. DALE, Respondent, v. W. E. JAEGER, Appellant

No. 4773

Supreme Court of Idaho

July 28, 1927

NEGLIGENCE - CONTRIBUTORY NEGLIGENCE - FAILURE OF GUEST TO PROTEST AGAINST EXCESSIVE SPEED OF AUTOMOBILE, EFFECT.

1. A gratuitous guest may not recover for his host's negilgent operation of an automobile, if, conscious of apparent danger or faced with such conditions and circumstances as would herald danger to a reasonably prudent man, he fails opportunely to protest and acquiesces therein.

2. Though contributory negligence is generally question of fact it becomes a matter of law for court's determination when established facts and circumstances permit only one possible conclusion to be drawn by reasonably prudent man.

3. Contributory negligence of gratuitous guest in automobile in failing to protest against driver's proceeding at excessive speed held to preclude recovery for injuries resulting when car left the road on a sharp curve and crashed into telephone pole.

APPEAL from the District Court of the Eighth Judicial District, for Bonner County. Hon. Charles L. Heitman, Judge.

Action for damages for personal injuries. Judgment for plaintiff. Reversed.

Judgment reversed, with instruction. Costs to appellant. Petition for rehearing denied.

Allen P. Asher and Danson, Lowe & Danson, for Appellant.

While the driver of a vehicle in which other persons are riding is required to use due care in the operation, yet, where it is negligently operated, a passenger who rides therein and sits silent, without objection or remonstrance when he has an opportunity to object, adopts the negligence of the driver as his own and cannot recover from the driver. (Naglo v Jones, 115 Kan. 140, 222 P. 116; Rebillard v Minneapolis, St. P. & S. S. Ry., 216 F. 503, 133 C. C. A. 9, L. R. A. 1915B, 953; City of Vincennes v. Thuis, 28 Ind.App. 523, 63 N.E. 315; Jepson v. Crosstown St. Ry., 72 Misc. 103, 129 N.Y.S. 233; Clark v. Traver, 205 A.D. 206, 200 N.Y.S. 52.)

"When dangers, which are either reasonably manifest or known to an invited guest, confront the driver of a vehicle and the guest has an adequate and proper opportunity to control or influence the situation for safety, if he sits by without warning or protest and permits himself to be driven carelessly to his injury, this is negligence which will bar recovery." (Berry on Automobiles, 3d ed., sec. 527; Lavine v. Abramson, 142 Md. 222, 120 A. 523; State v. Phillinger, 142 Md. 365, 120 A. 878; Hardie v. Barrett, 257 Pa. 42, 101 A. 75, L. R. A. 1917F, 444; Birmingham Ry., Light & Power Co. v. Barranco, 203 Ala. 639, 84 So. 839.)

Myrvin Davis, for Respondent.

The rule is established by the weight of authority that the owner or operator of an automobile owes the duty to an invited guest, to exercise reasonable care in its operation, and not unreasonably to expose him to danger and injury by increasing the hazard of travel. (O'Shea v. Lavoy, 175 Wis. 456, 20 A. L. R. 1008, and notes, 185 N.W. 525; Perkins v. Galloway, 194 Ala. 265, 69 So. 875, L. R. A. 1916E, 1190; Spring v. McCabe, 53 Cal.App. 330, 200 P. 41; Atwell v. Winkler, 196 A.D. 946, 188 N.Y.S. 158.)

Contributory negligence is a defense, and unless it is established beyond doubt, is a question that should be submitted to the jury. There being a showing herein that the plaintiff was not aware of the danger, it became in this case a question for the jury. (Moomey v. Peak, 57 Mich. 259, 23 N.W. 804; Berg v. Parsons, 84 Hun, 60, 31 N.Y.S. 1091; Colvin v. Vensel, 194 Pa. 83, 44 A. 1072; Larkin v. Saltair Beach Co., 30 Utah 86, 83 P. 686, 3 L. R. A., N. S., 982.)

Where the person injured has a right to depend on the care of the defendant, he will not be negligent in failing to observe the danger. (Brown v. Stevens, 136 Mich. 311, 99 N.W. 12; Murray v. Dwight, 15 A.D. 241, 44 N.Y.S. 234.)

To defeat plaintiff's right of recovery the contributory negligence must be the proximate cause of the injury. (Williams v. Southern Pacific R. Co. (Cal.), 9 P. 152; Hatfield v. Chicago etc. Ry. Co., 61 Iowa 434, 16 N.W. 336; 29 Cyc. 526, note 95.)

T. BAILEY LEE, J. Wm. E. Lee, C. J., and Budge and Givens, JJ., concur. Taylor, J., took no part.

OPINION

T. BAILEY LEE, J.

On the evening of September 30, 1924, the defendant accompanied by four guests, Brown, Bennett, Steadman and the plaintiff, set out from Sandpoint, Idaho, to Spokane, Washington, in a Hudson Speedster touring car owned and driven by defendant. While tearing along in the dark at a rate of over 60 miles an hour, defendant struck a sharp curve with the result that, notwithstanding the application of the brakes, the car left the road, crashed into a telephone pole, demolished the machine, and more or less injured all members of the party.

Plaintiff sued for damages, charging that defendant "ran the said car at a rate of speed exceeding fifty miles per hour, and by reason of the short distance that the road was lighted ahead of the said car, and by reason of the excessive speed at which he was driving the said car, as aforesaid, was unable to make the said turn, or to keep the car in the road."

At the close of plaintiff's case there had been established the following uncontroverted facts: That the trip was taken on a dark night; that the car was open and uninclosed by curtains that defendant was driving fast, maintaining a general speed of from 35 and 55 to 60 miles an hour; that the car slowed down for curves and detours; that on good stretches the speed ran from 47 to 60 miles an hour; that the car slowed down at the town of Moab, some two or three miles from the curve in question; that after leaving Moab the speed increased; that the speed on this last and two or three miles stretch averaged 60 miles an hour; that within a minute of reaching the curve, the passenger, Brown, warned defendant of the instant curve, and directed him to slow down; that defendant replied that they had yet to cross a culvert preceding the curve some considerable distance; whereupon Brown immediately insisted defendant was wrong; that instantaneously the curve flashed into sight, the defendant...