Gower v. Strain

• Decision Date: 09 January 1933
• Docket Number: 30339
• Citation: 169 Miss. 344,145 So. 244
• Court: Mississippi Supreme Court
• Parties: GOWER v. STRAIN

145 So. 244

169 Miss. 344

GOWER v. STRAIN

No. 30339

Supreme Court of Mississippi

January 9, 1933

Division A

1 PLEADING.

Party could not avail himself of variance between pleading and proof where he did not object on that ground to evidence when offered.

2 TRIAL.

Objection of variance between pleading and proof cannot be raised by instruction not admonishing court or opposing party thereof.

3 PLEADING.

For party to avail himself of variance between pleading and proof, variance must be material (Code 1930, section 568).

4. AUTOMOBILES.

Motorist's testimony that he fell asleep just before driving over embankment, injuring guest, admitted without objection, held not variance from pleading alleging motorist's negligence in general terms and in failing to apply brakes (Code 1930, section 568).

5. AUTOMOBILES.

Motorist's testimony regarding his drowsiness and consciousness of approaching sleep held sufficient from which to infer negligence in continuing driving while in such condition.

6. AUTOMOBILES.

Physician's guest who knew physician had only about three and one-half hourse sleep on preceding night did not assume risk of physician's drowsiness while driving.

7. EVIDENCE.

It is common knowledge that amount of sleep ordinarily required by different people varies greatly, and that, when occasion requires, people pursue vocations after loss of sleep without impairment of faculties.

8. AUTOMOBILES.

Motorist owed guest duty not to increase her danger or create new dangers, and to avoid injuring her.

9. AUTOMOBILES.

Whether physician falling asleep while driving, and driving over embankment, injuring his guest, was negligent, held for jury.

HON. J. D. FATHEREE, Judge.

APPEAL from circuit court of Lauderdale county, HON. J. D. FATHEREE, Judge.

Suit by Miss Nellie Mae Gower against Dr. T. A. Strain. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Reversed and remanded.

Thos. L. Bailey and Aubert C. Dunn, both of Meridian, for appellant.

Our court has very clearly and with a fine degree of exactitude determined the rights of the parties in "automobile guest cases" and has steadfastly followed the majority rule of the states, viz.: That these cases are analogous to that of a person who is a licensee on another's property and that while there is little responsibility on the part of the owner for the condition of the premises, he is nevertheless responsible for what has been aptly called "superadded negligence" and that any act carelessly done, which harms the persons rightfully there renders the owner liable, for the resulting injury.

Perkins v. Galloway, 194 Ala. 265, 69 So. 875, L. R. A. 1916E 1190; 91 A. 547; 164 S.W. 319, 50 L. R. A. (N. S.) 1100; Huddy's Law of Automobile (2 Ed.), 117, sec. 18; Belzoni Hardware Co. v. Langsford, 89 So. 919, 137 Miss. 234; Great Southern Lbr. Co. v. Hamilton, 137 Miss. 55; Columbus & G. Ry. Co. v. Fondren, 154 Miss. 40; Y. & M. V. R. Co. v. Beasley, 158 Miss. 370; Pipes v. Gallman, 140 So. 40.

The facts in the case establish the liability of the appellee.

Where the guest did not realize the danger or have an opportunity to protest to reasonably avoid accident, there could be no contributory element.

Pipes v. Gallman, 140 So. 40.

Appellee owed to the appellant the duty of not going to sleep and operating his car while asleep.

Bushnell v. Bushnell, 103 Conn. 583, 131 A. 432, 44 A. L. R. 785; Mulligan v. New Britain, 69 Conn. 96, 102, 36 A. 1005; Brown v. New Haven Taxicab Co., 93 Conn. 251, 257, 105 A. 706; Walters v. Hansen, 99 Conn. 680, 683, 122 A. 564; Tower v. Camp, 103 Conn. 41, 46, 130 A. 86; Carlson v. Connecticut Co., 95 Conn. 724, 112 A. 646; Sliwowoski v. New York, N. H. & H. R. Co., 94 Conn. 303, 309, 108 A. 805; 1 Shearman & Redf. Neg., 58a et seq.; Ezra Ripley Thayer, 29 Harvard L. Rev. 807; 5 Wigmore, Evidence (2d) 2491.

Dunn & Snow, of Meridian, for appellee.

It is common learning that it is not permissible to make one case in the pleading and another one by the proof; and the court can only grant such relief as the pleadings justify regardless of the evidence.

Powell v. Plant, 23 So. 399.

A variance between the nature and elements of plaintiff's cause of action, as alleged in his pleading and as proved at the trial, is fatal.

Chisolm v. Alcorn, 15, So. 73, 71. Miss. 506; Georgia Pacific R. R. Co. v. Baird, 24 So. 195; Wells v. A. G. S. Ry., 67 Miss. 24; 49 C. J. 791, par. 1167; Kennedy Bros. v. M. & G. R. R. Co., 74 Ala. 430.

The proof does not show actionable negligence.

The appellant assumed the risk incident to appellee's loss of sleep and consequent drowsiness.

Chapman v. Powers, 116 So. 609; Section 513, Code of 1930; G. M. & N. Ry. Co. v. Brown, 102 So. 855.

A person riding in an automobile with another should not close his eyes to manifest danger or fail to give warning of any danger that becomes apparent to him.

Y. & M. V. Ry. Co. v. Lucken, 102 So. 392; Cleary v. Eckart, 210 N.W. 267.

He who enters an automobile to take a ride with the owner also takes the automobile and the driver as he finds them.

Marple, Admr. v. Haddad, 138 S.E. 113, 61 A. L. R. 1248; Lewellyn v. Shott, 155 S.E. 115.

Guests who accept the hospitality of a driver of an automobile accept whatever risk attends the degree of proficiency of such driver and his usual and customary habits of driving with which they are familiar.

Olson v. Hermansen, 220 N.W. 203, 61 A. L. R. 1243; Munson v. Rupker, 148 N.E. 169; Mitchell v. Raynud, 195 N.W. 855; Carroll v. Yonkers, 184 N.Y.S. 847; Krueger v. Krueger, 222 N.W. 784; Armstrong v. Cook, 229 N.W. 433; Kelly v. Gagnon, 236, N.W. 161; Clese v. Prunty, 152 S.E. 201; Patrod v. Foote, 138 N.Y.S. 220; Higgins v. Mason, 243 N.Y.S. 630; Dickerson v. Connecticut Co., 118 A. 518; Ferrill v. Solski, 123 A. 493; O'Shea v. LaVoy, 185 N.W. 525; Lewellyn v. Shott, 155 S.E. 115; Kemp v. Stevenson, 247 N.Y.S. 651.

Argued orally by Aubert C. Dunn and Thomas L. Bailey, for appellant, and by E. L. Snow, for appellee.

OPINION

Cook, J.

The appellant instituted this suit in the circuit court of Lauderdale county against Dr. T. A. Strain, seeking to recover damages for personal injuries sustained by her as a result of the alleged negligent operation of an automobile in which she was riding as a guest. The appellee was called by the appellant as an adverse witness, and was fully cross-examined by his own counsel, and, at the conclusion of the testimony offered by the appellant, the court peremptorily instructed the jury to return a verdict for the appellee, and, from a verdict and judgment entered in pursuance of this instruction, this appeal was prosecuted.

The appellant was a niece of the appellee, and frequently visited in his home. On Saturday night preceding Sunday, August 30, 1931, she was a guest in the appellee's home, and, when he returned to his home about ten-thirty p. m., he informed his wife and daughter and the appellant that he expected to drive to Columbus, Mississippi, upon the following day. They all expressed a desire to accompany him, and he thereupon invited them to make the trip with him. They retired about twelve o'clock with the understanding that they would start on this journey about four a. m. the following morning; and at four a. m. on this Sunday morning they were on the United States highway No. 45 leading from Meridian to Columbus. Mississippi. They were traveling in the appellee's Master Six Buick coupe, the appellant and the appellee's wife sitting on the rumble seat at the rear, while the appellee, as driver and operator of the automobile, and his ten year old daughter were on the front seat. They proceeded on the journey without any untoward incident until they reached a point about fifteen miles from Columbus, when the car crossed from the right-hand side of the highway to the left, and turned over down an embankment on the left side thereof, and seriously injured the appellant. The automobile left the highway a short distance after it passed over a small concrete bridge in a curve, and from the bridge to the point of the accident there was some loose gravel and the highway was somewhat corrugated.

The appellee testified that, for some distance before he reached the point where the automobile left the road, he had been drowsy from loss of sleep, and had several times lowered the window at his left in order to get some fresh air in an effort to overcome this drowsiness and keep awake; that he saw the bridge in the curve before he reached it, but was not entirely conscious of what happened after he crossed this bridge until he found his car being precipitated down the embankment; that he was asleep, but did not consciously permit himself to go to sleep; and that on other occasions he had gone to sleep while driving his automobile and had managed to hold the road. At another place in his testimony he stated: "I did not consciously permit myself to go to sleep, but I went to sleep. Something happened out there. I don't know what happened. I don't remember what happened." In reply to questions as to why he kept on driving without notifying the occupants of the automobile of his sleepy condition, he testified as follows: "I figured that I had been in this condition several times, a number of times, especially when I would lose sleep on account of being out at night, and I figured that maybe with a nod or two on the way I would brighten up and go right on. I did not feel that it was necessary to notify them. I felt that I could go on over."

In support of the action of the court below in granting a peremptory instruction to the jury to find for the appellee, it is first contended that this instruction was properly granted, for...