Heyde v. Patten

• Decision Date: 19 June 1931
• Docket Number: No. 21460.,21460.
• Citation: 39 S.W.2d 813
• Parties: HEYDE v. PATTEN.
• Court: Missouri Court of Appeals

39 S.W.2d 813

HEYDE v. PATTEN.

No. 21460.

St. Louis Court of Appeals. Missouri.

June 19, 1931.

Rehearing Denied June 30, 1931.

Appeal from St. Louis Circuit Court; M. Hartmann, Judge.

"Not to be officially published."

Action by Walter L. Heyde against Cleo M. Patten. From a judgment in favor of plaintiff, defendant appeals.

Affirmed.

Bishop & Claiborne, of St. Louis, for appellant.

Theodore Rassieur, John P. McCammon, Jr., and Charles R. Judge, all of St. Louis, for respondent.

BECKER, J.

Plaintiff had judgment against the defendant in an action to recover damages for injuries sustained as the result of alleged negligence on the part of the defendant while the plaintiff was riding as a passenger in the automobile of the defendant. Defendant in due course appeals.

For the purposes of this opinion it is sufficient to state that the petition was conventional, and that the answer was merely a general denial.

The sufficiency of the petition and the correctness and propriety of the instructions given at the request of the plaintiff are not questioned, nor is there any claim that the evidence is insufficient to support the verdict, or that the verdict is excessive. In light of this situation we limit ourselves to a statement of only those facts which are necessary to a determination of the issues involved in this appeal.

On the 16th day of June, 1928, plaintiff and defendant, with their respective families, started out from plaintiff's home in Webster Groves, Mo., at about 5 o'clock in the morning in defendant's automobile, intending to drive to Doniphan, Mo. The party reached Poplar Bluff about noon, and, after having lunch, started on highway No. 42 to Doniphan. The accident causing the injuries for which plaintiff brought this suit occurred between Poplar Bluff and Doniphan, at a bridge over Logan creek. The highway at this point and for some distance before was surfaced with gravel. The state highway department was grading the road and at this point had left ridges of loose gravel in the road. Defendant, who was driving, descended a hill toward the bridge at a speed of about forty-five miles per hour, hit a ridge of loose gravel, skidded, partially righted the car, skidded again, and crashed into the bridge, injuring plaintiff.

The evidence shows that several times before the accident the occupants of the car had occasion to complain, and did complain, to defendant of the manner in which he was driving. On one occasion, just before the accident occurred, plaintiff asked defendant to let him drive. Plaintiff testified that when complaints had been made defendant changed his method of driving—driving more slowly. Plaintiff's wife testified that Mrs. Patten, wife of defendant, warned defendant, just about the time the car hit the loose gravel, "as he had taken his eyes off the road."

Mrs. Heyde testified that she and Mr. Heyde had a mutual understanding with their friends to share expenses of any party. Mr. Heyde testified that he had made no arrangements to share the expenses of this trip and had not paid "one red cent" toward his share of the expenses. He admitted in his deposition that he intended to pay his share, but testified at the trial that he only intended to do so if it were suggested; that he considered himself an invited guest. He further stated that this trip was the first he had ever taken with Mr. Patten.

Defendant stood upon his demurrer offered at the close of plaintiff's case.

The defendant here on appeal urges that the trial court erred in overruling his demurrer offered at the close of plaintiff's case, even though defendant did not by his answer plead contributory negligence, for the reason that plaintiff, on his own proof, should be held to be guilty of contributory negligence as a matter of law. To this we cannot accede.

In considering the point before us, we have in mind that an occupant of a vehicle may not intrust his safety absolutely to the driver of the vehicle, regardless of imminent danger or the visible lack of ordinary caution of the driver to avoid harm, and that a passenger who is aware of such danger, and that the driver is remiss in guarding against it, takes no care himself to avoid injury, cannot recover. This is the law, not because the driver's negligence is imputable to the passenger, but because the latter's own negligence proximately contributes to his injury.

The evidence in this case, however, fails to show reckless disregard on the part of plaintiff for his own safety, and the absolute reliance on the driver's ability as would warrant the trial court in holding plaintiff guilty of contributory negligence as a matter of law. There is testimony that on several occasions during the course of the journey one or the other of the passengers in the car warned the defendant that he was driving too fast, but the uncontradicted testimony is that on each of these occasions the defendant had, upon receiving such complaint, slackened the speed of the car. In this situation, at least up to the point just prior to the accident, it cannot be said that the plaintiff, though he had gotten out of the car several times during the trip when the car had been stopped at various points, should be held guilty of contributory negligence as a matter of law for getting back into the car and continuing on the journey.

"If an occupant of a motor vehicle knows or in the exercise of ordinary care should know that to remain longer in the vehicle is dangerous, and if under the same or similar circumstances a reasonably prudent person would leave or withdraw from the vehicle, he is guilty of contributory negligence if, a reasonable opportunity therefor being afforded, he fails to do so, and such failure contributes proximately to cause his injury. Thus, an occupant may be guilty of contributory negligence in failing to withdraw from a motor vehicle where the driver persists, despite protests and warnings, in operating the vehicle at a dangerous or unlawful rate of speed, or in driving into a situation of danger without taking proper care." 42 Corpus Juris, 1176 § 952.

As to the situation just prior to the accident, the record discloses...