Ewing v. Edwards

• Decision Date: 03 November 1934
• Docket Number: 31667.
• Citation: 36 P.2d 1021,140 Kan. 325
• Parties: EWING et ux. v. EDWARDS.
• Court: Kansas Supreme Court

36 P.2d 1021

140 Kan. 325

EWING et ux. v. EDWARDS.

No. 31667.

Supreme Court of Kansas

November 3, 1934

Syllabus by the Court.

Evidence disclosing that automobile host invited young lady whom host knew was not experienced driver to operate automobile, and that host pulled out hand throttle located on dashboard for purpose of increasing speed of automobile, held not to sustain verdict that host was guilty of "gross and wanton negligence," so as to render host liable to guest injured when driver lost control of automobile (Rev. St Supp. 1933, 8--122b).

Where verdict finding automobile host guilty of gross and wanton negligence is not sustained by evidence, it will be set aside on appeal.

1. The interpretation of R.S.Supp. 1933, 8--122b, made by this court in Stout v. Gallemore, 138 Kan. 385, 26 P.2d 573, is adhered to.

2. The record is examined, and it is held that, giving the evidence of plaintiffs the interpretation most favorable to them and finding all disputed facts in favor of plaintiffs, still the burden of proving defendant guilty of gross and wanton negligence was not sustained.

3. Where the jury found defendant guilty of gross and wanton negligence and there was no evidence to sustain it, the finding will be set aside.

Appeal from District Court, Nemaha County; C. W. Ryan, Judge.

Action by Melvin Ewing and wife against Gordon Edwards, a minor. Judgment for plaintiffs, and defendant appeals.

Judgment reversed, with directions.

T. M Lillard, O. B. Eidson, and Olin Buck, all of Topeka, and R M. Emery, Jr., of Seneca, for appellant.

Walker F. Means and Lloyd S. Miller, both of Hiawatha, for appellees.

SMITH Justice.

This is an action to recover damages for the death of the daughter of plaintiffs, who sustained injuries while riding in an automobile as a guest of defendant on September 30, 1931. Judgment was for plaintiffs. Defendant appeals.

The defendant had attended a picnic with some other young people. When they started to return to town, a young lady was invited by defendant to drive the car; next to her in the front seat was the deceased; next to her and on the extreme right of the driver's seat was defendant. That made three people in the front seat. In the rear seat was the chaperon and another young lady. They took the chaperon home and then went for a ride. Somewhere in town they saw another car of young people who had been at the picnic. They started to overtake this car. It left town on a main traveled highway and the car in this case followed. This car was going about 30 miles an hour when it turned onto the main highway. It continued at that speed for approximately a quarter of a mile to the top of the first grade, directly east of Sabetha, Kan., on United States Federal Highway No. 36. At that point the car ahead was gaining some on the Edwards car, and Gordon Edwards, the defendant in this case, in an attempt to keep in sight of it pulled out the hand throttle, located at the right of the center of the dashboard. By pulling this hand throttle the flow of the gasoline to the carburetor was enlarged, and the engine accelerated, increasing the speed of the car.

The car was going forty-five miles an hour when it reached the bottom of the hill. As the car was going down the hill the driver lost control of it. It swerved to the right-hand side of the road, then back to the left-hand side, going into the ditch, traveling about forty or fifty feet, then out into the road again, after which it turned over. The daughter of plaintiffs was injured so severely that she died later. The car belonged to the father of defendant. His mother had granted him permission to use it.

The case is clearly within the provisions of R.S.Supp. 1933, 8--122b. That section is as follows: "That no person who is transported by the owner or operator of a motor vehicle, as his guest, without payments for such transportation, shall have a cause of action for damages against such owner or operator for injury, death or damage, unless such injury, death or damage shall have resulted from the gross and wanton negligence of the operator of such motor vehicle." The gross and wanton negligence upon which plaintiffs depend is the act of defendant in pulling out the throttle of the car, thereby increasing its speed.

This statute was considered by this court in Stout v. Gallemore, 138 Kan. 385, 26 P.2d 573.

There have been cases heretofore decided by this court where it was necessary that conduct be held to be wanton in order for plaintiffs to recover. In those cases it has been held that the term implied conduct different in kind from negligence. The case of Atchison, T. & S. F. Railway Co. v. Baker, 79 Kan. 183, 98 P. 804, 21 L.R.A. (N. S.) 427, was such a case.

In the case of Stout v. Gallemore, supra, the court quoted from the opinion in that case: "The duty there referred to, the disregard of which amounts to wantonness, is manifestly that which arises only when the person charged with dereliction has knowledge of the danger, or of the facts which impute that knowledge to him. *** Although what is really reckless and wanton misconduct is sometimes spoken of as gross negligence, the expression is everywhere recognized as inaccurate and unfortunate, because it seems to imply a difference only of degree. *** For the same reason the phrase ...