Ernest v. Bellville

• Decision Date: 20 April 1936
• Citation: 53 Ohio App. 110,4 N.E.2d 286
• Parties: ERNEST v. BELLVILLE.
• Court: Ohio Court of Appeals

4 N.E.2d 286

53 Ohio App. 110

ERNEST v. BELLVILLE.

Court of Appeals of Ohio, Sixth District, Huron.

April 20, 1936

Syllabus by the Court .

1. A passenger in an automobile on a fishing trip with the defendant driver and another was a guest within the meaning of section 6308-6, General Code, although the passenger voluntarily paid part of the expense of the gasoline on the trip as well as upon some previous trips, where the payment was gratuitous and no prior agreement or arrangement in this respect had been made, and where the passenger did not intend to pay this as fare or to hire the driver.

2. In such a situation where the evidence shows that the defendant driver was blinded by the lights of automobiles coming towards him around a curve in the road, that he thought one of the automobiles was trying to pass the other and for that reason he pulled over to the right side of the road to avoid a collision, slackened his speed from about 30 or 35 miles to about 15 miles per hour, that almost instantly his right wheel dropped down into a ditch where the automobile tipped over, resulting in the guest passenger's injuries, his testimony shows careless driving or bad judgment but not wanton misconduct.

Young & Young, of Norwalk, and E. M. Palmer, of New London, for plaintiff in error.

G. Ray Craig, of Norwalk, for defendant in error.

OVERMYER, Presiding Judge.

The parties stood in the same relation below and will be referred to here as plaintiff and defendant.

The plaintiff brought an action against the defendant to recover damages for injuries sustained by him as a result of defendant's automobile dropping off the highway and into a ditch and overturning while plaintiff was riding therein with defendant in this county on November 7, 1934, about 7 o'clock p. m. The petition, after amendment in common pleas court, charged ‘ that the defendant wantonly drove the motor vehicle he was operating off the road, down a ditch or embankment, failed to stop the same or failed to control the same,’ and as a result plaintiff was injured.

The answer was a general denial, except that the accident occurred, etc., and for a second defense it was averred that plaintiff ‘ was a guest of defendant in said automobile driven by defendant and that plaintiff was then being transported in said automobile without payment therefor and solely as a guest,’ and that what happened was in no manner due to or caused by any misconduct of defendant.

The trial resulted in a verdict for the defendant. With the verdicts there was submitted an interrogatory by the defendant, as follows: ‘ Was the plaintiff at the time of the accident in question riding in defendant's automobile as a guest and being transported without payment therefor; or was he a passenger in said automobile paying for his transportation therein? Answer this question by stating whether he was a guest or a passenger.'

The answer, signed by twelve jurors, was ‘ Guest.'

Judgment was later entered on this verdict, and this proceeding is brought to reverse the judgment. The principal errors complained of by the plaintiff refer to the charge of the court and that the judgment is not sustained by sufficient evidence and is contrary to law.

The facts, in substance, appear as follows: On the date alleged the plaintiff and defendant, together with a Mr. King, were returning from a fishing trip near Sandusky to their homes at New London, and when about four miles south-east of Norwalk on route 18, they approached a curve in the road. The defendant was driving his car and the plaintiff was seated with the defendant on the front seat and the third man, King, in the rear seat. The defendant claims, and no one disputes, that at the moment he was blinded by the lights of several cars coming toward him on the curve; that he thought one of such cars was trying to pass the other and for that reason he pulled over to the right side of the road to avoid the danger of a collision, slackened his speed from about 30 or 35 miles to about 15, applied his brakes, and that almost instantly his right wheels dropped down into what is described as a ditch 2 1/2 to 3 feet deep and 8 or 9 feet wide, with a perpendicular side next to the road, and after going along in the ditch some 25 feet tipped over, resulting in the injuries complained of by plaintiff.

Plaintiff contends:

First, that he was not a ‘ guest’ within the purview and meaning of section 6308-6, General Code.

Second, that the defendant, in the handling and control of his automobile on the occasion in question, was guilty of wanton misconduct.

With reference to the first contention, we find the evidence discloses that on the trip in question the plaintiff and Mr King paid for a tank of gasoline for the defendant's car; that on some previous fishing trips the same parties had followed a similar practice, that is, one of the three furnished the car and the other two some gasoline and oil. There is no evidence to show that on this occasion or any other this was done by any agreement or previous arrangement or that there was any understanding between them in that respect. On the contrary, the plaintiff himself testified that he did not intend to pay anything to defendant for the use of the automobile, and that he did not intend to pay defendant money as fare, or to hire him, and that there was no agreement about the matter. It appears, therefore, that whatever gas plaintiff may have paid for, it was a voluntary act on his...