Grabau v. Pudwill

• Decision Date: 10 May 1920
• Citation: 178 N.W. 124,45 N.D. 423
• Parties: GRABAU v. PUDWILL et al.
• Court: North Dakota Supreme Court

45 N.D. 423

178 N.W. 124

GRABAU

v.PUDWILL et al.

Supreme Court of North Dakota.

May 10, 1920.

Syllabus by the Court.

Where the evidence shows that a boy, 14 years of age, climbed upon the running board of defendants' automobile, and with their knowledge and implied consent remained thereon during a trip on a country road, for a distance of between six and seven miles, when the automobile, at a curve in the road, left the road and collided with a wire fence, and one leg of the boy was so lacerated and torn that it was required, later, to amputate the same, it was error for the trial court to direct a verdict for the defendants and to refuse to submit the question of defendants' negligence to the jury; and this, though there were no proof against the defendants of active negligence.

In view of the youth of plaintiff, the nature of the acts causing the injury, and the attendant circumstances and conditions accompanying such acts, proof of which appears in the evidence, the question of defendants' negligence was one for the jury.

Appeal from District Court, Burleigh County; W. L. Nuessle, Judge.

Action by Henry Grabau, a minor, by Andrew Grabau, his guardian, against William Pudwill and another. Judgment for defendants on a directed verdict, and plaintiff appeals. Reversed and remanded.

Robinson, J., dissenting.

E. T. Burke, of Bismarck, for appellant.

G. M. Gannon, of Ashley, and H. W. Platt, of Wishek, for respondents.

GRACE, J.

This is an action of the plaintiff, by his guardian, to recover damages for personal injury alleged to have been caused by the defendants in the negligent operation of certain Ford automobile being driven by her son, William Pudwill.

The complaint is in the ordinary and usual form, in that class of actions. It sets forth the alleged carelessness and negligence of the defendants, and the facts, generally, upon which a cause of action is based.

The material facts are as follows: The plaintiff is a boy about 14 years of age. Mary Pudwill was the owner of the car. She is the mother of William Pudwill, who is about 26 years of age, and was driving the car on the day of the injury to the plaintiff.

The plaintiff and defendants lived on adjoining farms, and were well acquainted. Henry Grabau was temporarily staying in Wishek, N. D., where he was preparing himself for confirmation in the Lutheran Church. He had been staying in town about two years, attending school. He was attending the confirmation school of the Lutheran Church. Prior to that time he had lived upon the farm.

On the day he received his injury, it appears the Baptists were holding immersion services at a small lake about eight miles southeast of Wishek.

The plaintiff was standing on the street in Wishek, in front of his temporary residence, when the defendants and the three younger Pudwill girls drove up in a Ford car and stopped. One of the girls went into the house.

While the car was thus stopped, the plaintiff stepped upon the running board and had some conversation with William Pudwill, who was driving the car.

The plaintiff asked where they were going, and was told, “To the lake.” Within a short time, the defendants and the other children who were with them proceeded on their way to the lake, the defendant William Pudwill driving the car. The plaintiff maintained his place on the running board.

Before leaving town, the defendant William Pudwill stopped the car and asked the plaintiff if he did not want to get down. The plaintiff replied that he wished to go to the lake, and the journey towards the lake was continued.

Between 6 and 7 miles from town, there is a curve in the road, and, at this point, the car left the road, ran some distance, perhaps 40 feet, and collided with a barbed wire fence. The plaintiff, who was still standing on the running board, was caught between the car and the fence, and his left leg was so severely injured as to necessitate its amputation, which was within a short time performed.

There is no evidence to show what caused the car to leave the track, nor to show that the car was broken or in bad condition.

There is no evidence of excessive or reckless speed. There is some evidence from which the inference might be drawn that William Pudwill was an inexperienced driver, the car in question having been purchased only about a month before the accident; and there is no evidence to show that he had ever had any experience in driving any car, except this one.

The defendants at no time asked the plaintiff to get into the car.

The answer of the defendants is a general denial, excepting as to certain admissions which appear in the answer. Defendants further, in substance, plead that plaintiff, without the consent and against the wishes of defendants, jumped upon the automobile and sought to ride with them on their journey.

They further plead that they twice ejected him from the automobile, but that the plaintiff again mounted the same and attempted to ride with them. Defendants offer no proof of such ejectments.

The defendants show by their answer that the automobile became unmanageable, and that control of the same was lost, and that it collided with the wire fence, in which collision the plaintiff was injured. They plead contributory negligence of the plaintiff, and further allege due care and caution in themselves in the operation of the automobile.

The defendants offered no evidence, but at the close of plaintiff's case made a motion for a directed verdict on the ground that no negligence of the defendants had been proven, which motion was granted.

The granting of this motion and the refusal of the court to submit the case to the jury are the only errors assigned, and may be considered together.

[1][2] The plaintiff submits four propositions, upon which he relies: First, that the plaintiff was a guest of the defendants by sufferance, at least. Second, that the defendants owed to him a duty that any common carrier owes to its guest. Third, that it was negligence upon the part of the defendants to allow the boy to ride upon the running board of the car, where he was exposed to danger. Fourth, that the fact that the car left the road a distance of 40 feet, and collided with a barbed wire fence, is evidence of negligence upon a part of the defendants, even though plaintiff is unable to state how the car came to leave the road.

The first of these propositions, we are inclined to think, needs little consideration. The plaintiff received no invitation to ride upon the car.

Yet the defendants knew all the time that he was upon the running board of the car. He was in plain sight. He was a guest of the defendants, by sufferance. It is true that he was a gratuitous guest, but this alone, is not sufficient to relieve the...