Eddy v. Wells

• Decision Date: 30 July 1930
• Docket Number: No. 5767.,5767.
• Citation: 231 N.W. 785,59 N.D. 663
• Parties: EDDY v. WELLS.
• Court: North Dakota Supreme Court

59 N.D. 663

231 N.W. 785

EDDY

v.WELLS.

No. 5767.

Supreme Court of North Dakota.

April 24, 1930.

Rehearing Denied July 30, 1930.

Syllabus by the Court.

In a suit for damages for injuries incurred in an automobile accident, the action of the court in giving certain instructions and in refusing to give certain other requested instructions is considered, and it is held, for reasons stated in the opinion, that there was no prejudicial error with respect thereto.

Syllabus by the Court.

An order granting a new trial will not be disturbed if any of the grounds on which the motion therefor was based are sufficient to warrant the order, although the ground assigned by the trial court was not a good ground.

Syllabus by the Court.

One who rides as a guest in an automobile does so subject to the hazards reasonably incident to the use of such a vehicle; but the host must use ordinary care, considering all the circumstances, so as not to increase such hazards.

Syllabus by the Court.

An order granting a new trial, grounded solely on a question of law, is not a discretionary order.

On Petition for Rehearing.

Syllabus by the Court.

One who rides in an automobile as the gratuitous guest of the driver thereof is required to exercise such care as is reasonable and practicable to avoid injury to himself; and if, knowing that the automobile is being driven at an excessive rate of speed, he acquiesces, and though having an opportunity to do so fails to protest to or warn, the driver, he is guilty of contributory negligence, and cannot recover as against the driver on account of injuries resulting from such excessive speed.

Appeal from District Court, Stutsman County; R. G. McFarland, Judge.

Action by P. W. Eddy against Alson Wells. Verdict for defendant, and, from an order granting a new trial, defendant appeals.

Reversed, and judgment reinstated.

Conmy, Young & Conmy, of Fargo, for appellant.

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

NUESSLE, J.

The defendant Wells set out to drive from Jamestown to Fargo in his Packard sedan. His wife and three guests, one of whom was the plaintiff Eddy, accompanied him. There had been a sleet storm the night before they started and the roads were icy and slippery. However, Wells was an experienced driver and they drove along at from 35 to 40 miles an hour. Eddy had had experience in driving an automobile and he realized that the roads were slippery and that there was some danger in driving rapidly over them. He sat in the rear seat with the two other guests. He thought they were traveling too fast, considering the roads, and though he did not remonstrate with Wells he remarked generally to his companions that the roads were treacherous. As they approached a hill somebody in the back seat made a remark, and, in the words of the plaintiff “Wells turned his head just a little bit and the car lost the alinement and he tried to straighten it and the car shimmied and flopped and went over on its side.” Eddy was hurt. He thereafter brought this action to recover for damages claimed to have been suffered by reason of the accident.

In his complaint he alleged that he was riding with Wells; that Wells was driving at an excessive rate of speed, considering the icy and dangerous condition of the roads; that as a consequence and because of Wells' negligence the accident occurred and he was thereby injured. The defendant Wells, answering, admitted that he was driving the automobile in question and that an accident happened. He alleged that Eddy was a gratuitous passenger and that the roads were slippery and dangerous; that the accident was unavoidable and occurred without negligence on his part; that Eddy was an experienced automobile driver; that he knew the danger of traveling under the conditions as they existed; that notwithstanding he made no remonstrance but was content with the manner and speed at which Wells was driving; that he assumed all the risks incident to traveling in that manner under the circumstances as they existed; that he was guilty of contributory negligence and that there was no negligence on the part of the defendant. The case was tried to a jury. The jury returned a verdict in favor of the defendant. Thereafter the plaintiff moved for a new trial, predicating his motion on alleged errors of the court in giving and refusing to give instructions.

Plaintiff grounded his motion on ten assignments of error. Nine of these were predicated on instructions as given, and the tenth on the refusal of the court to give an instruction which was requested. The motion came on to be heard. Arguments were had. The trial court, after consideration, ordered a new trial on the ground that that portion of the charge on which the ninth assignment was based was erroneous and prejudicial. Thereupon the defendant perfected this appeal from the order granting a new trial.

In support of his appeal the defendant insists that there was no prejudicial error on the part of the court by reason of giving any of the instructions which were assigned as erroneous, and that considering the whole charge there was no error in refusing to give the instruction requested by the plaintiff. He further contends that, in the instant case, the trial court granted the motion for new trial because, as is disclosed by his memorandum opinion, that portion of the instruction set out in the ninth assignment was erroneous and prejudicial; that such portion of the charge was neither erroneous nor prejudicial, and that the court made his decision and order purely on a question of law, and therefore it was not a matter which was in any way discretionary with the court. The defendant further contends that, in any event, there was no error in giving or refusing to give instructions for the reason that the defendant was entitled to a directed verdict at the close of the whole case; that he moved for the same and so, the jury having returned a verdict in his favor, no new trial should have been granted.

[1] That portion of the instruction assigned as erroneous by the plaintiff, and which the court considered to be so, reads as follows: “You are instructed here that the plaintiff assumed the risk of the car skidding and overturning on the ice or snow, if it did so skid, and he cannot recover damages because of that fact unless he has shown you by fair preponderance of the evidence that the skidding and overturning was proximately caused by the defendant's negligence.”

The trial court evidently considered this instruction erroneous because of what was said with respect to the refusal to give a similar instruction requested by the defendant in the case of Bolton v. Wells (N. D.) 225 N. W. 791, 793. In that case we said: “It is claimed the court erred in failing to instruct the jury that plaintiff assumed the risk of the car skidding and overturning on the ice or snow; but there was no error in refusing to do this, as the plaintiff did not assume any such risk.”

The Bolton Case was one brought to recover damages for an injury received in the same accident out of which the instant case arose. The cases, however, are to be distinguished in this respect: It appears that Bolton had had no experience in the driving of automobiles, although he had ridden much in them; nor did it appear that he knew or believed the roads to be dangerous. Furthermore, in the Bolton Case, we merely held that there was no error because of the refusal of the trial court to charge that the plaintiff assumed the risk of the car skidding and overturning on the ice and snow, while in the instant case the contention is made that the giving of such an instruction constituted prejudicial error.

The term “assumption of risk” bears a long accepted and well-defined meaning in the law of negligence in cases arising where the relation of master and servant exists. In the Bolton Case there was no such relationship and, therefore, so far as the term in its strict legal sense was concerned, there was no assumption of risk. As shown in the excerpt from the opinion in that case, quoted above, the court dismissed the term “assumption of risk” because as used in that sense it was not appropriate. Where a request is made for an instruction and terms are used which have a well-defined legal meaning, the court has the right to consider that they are used to express that meaning. Thus the trial court was justified in declining to charge with respect to assumption of risk when the relationship of master and servant was not involved. Especially was this so where instructions appropriate to the happening of an accident not arising from the negligence of the defendant were given, as in the Bolton Case.

[3] It must be recognized, however, that there is a popular sense in which the term “assumption of risk” is being used, and this is becoming noticeable in current automobile litigation. Some of the courts have used this language in such cases at times in a sense different from that which the term has commonly borne in legal parlance. And latterly many of the “catch phrase” writers in the various law reports have used the term in this way. An automobile owner who gives his friend a ride is not an insurer of that friend's safety. The relation of host and guest ensues. The friend becomes a guest subject to the hazards reasonably incident to such a use of such a vehicle. The host must use and exercise ordinary care, considering all of the circumstances, so as not to increase such hazards. A guest in an automobile takes the automobile “as is,” but if the host knows of any dangerous defects in the vehicle it is his duty to warn the guest respecting them. Marple v. Haddad, 103 W. Va. 508, 138 S. E. 113, 61 A. L. R. 1248, and note; Huddy on Automobiles, §§ 802, 803; Berry on Automobiles, § 692. In the foregoing sense it may be said that a guest does assume the risk. In any event, in the instant case, the words “assumption of risk” could...