Higgins v. Mason

Decision Date25 November 1930
Citation255 N.Y. 104,174 N.E. 77
PartiesHIGGINS v. MASON.
CourtNew York Court of Appeals Court of Appeals

OPINION TEXT STARTS HERE

Action by Josephine B. Higgins, as administratrix of Robert R. Higgins, deceased, against George Mason, Jr. From a judgment of the Appellate Division, Third Department (230 App. Div. 149, 243 N. Y. S. 630), reversing as matter of law a judgment on a verdict in plaintiff's favor, and dismissing the complaint, plaintiff appeals.

Affirmed.

Appeal from Supreme Court, Appellate Division, Third Department.

Lawrence B. McKelvey, of Saratoga Springs, and Wyllys A. Dunham, of Corinth, for appellant.

Clarence B. Kilmer, W. P. Butler, and C. L. Hoey, all of Saratoga Springs, for respondent.

KELLOGG, J.

The plaintiff, Josephine B. Higgins, her husband, Robert Higgins, and the defendant's wife, Grace Mason, were the guests of the defendant, George Mason, Jr., on an automobile trip from Corinth, N. Y., to Gravesville, a village near Utica, N. Y., and return, and rode with the defendant in an automobile owned and furnished by him. On the return journey, when about twenty miles from Corinth, the car, then driven by the plaintiff, Josephine B. Higgins, suddenly turned to the left, crossed the road on a sharp angle, entered the left-hand ditch, and overturned. The occurrence caused the death of Robert Higgins. The plaintiff brings this action, as his administratrix, to recover damages for the death, charging that it was caused by the defendant's negligence.

Shortly after the occurrence, a piece of rounded metal, three-fourths of an inch in diameter and one and a half inches long, was found near the center of the highway. It proved to be the upper end of a ‘spindle pin’ or ‘pivot pin,’ a metal bolt or pin about seven inches long, which had served to attach the right-hand forward running wheel to the frame of the car, and furnished a pivot upon which there might be made to turn, by the steering mechanism, the running wheel, a short axle, upon which it revolved, and the spindle body, to which the axle was firmly attached. The pin, when in place, passed through the upper and lower arms of the stationary axle of the car, between which the spindle body was made fast, and likewise through the spindle body. With the pin entirely gone, the spindle body and running wheel would have dropped away from the car. With the pin in place, but broken, the upper part might rise with the motion of the car, thereby permitting the lower part, secured only at the bottom, as well as the spindle body and its attachments, to bend outward, in turn causing the running wheel to ‘toe in,’ whereby the direct forward motion of the car would be affected. The pin, however, while the upper part rested firmly on the lower, might have served to keep the running wheel in alignment, and the car motion true. At times a break in the pin might cause a shimmying in the steering wheel; while at other times this would not be noticeable. A car might travel a great distance with a broken pin without overturning. In this instance the right forward running wheel and spindle housing were found to be detached from the axle arms after the accident had occurred. It could reasonably be found that a broken spindle pin was the cause, not the result, of the overturning of the car.

In our sister states, where the rule generally prevails that an owner in operating an automobile owes to a guest the duty of ordinary care, the application of the rule has been expressly limited to instances where the violation of an obligation imposed, ‘not to increase the danger to the guest or to create any new danger,’ has been the subject of the claimed omission. Beard v. Klusmeier, 158 Ky. 153, 164 S. W. 319,50 L. R. A. (N. S.) 1100, Ann. Cas. 1915D, 342;Perkins v. Galloway, 194 Ala. 265, 69 So. 875, L. R. A. 1916E, 1190;Spring v. McCabe, 53 Cal. App. 330, 200 P. 41;Bauer v. Griess, 105 Neb. 381, 181 N. W. 156;Fitzjarrell v. Boyd, 123 Md. 497, 91 A. 547;Tennessee Central R. R. Co. v. Vanhoy, 143 Tenn. 312, 226 S. W. 225;Dickerson v. Connecticut Co., 98 Conn. 87, 90, 118 A. 518, 519;Hemington v. Hemington, 221 Mich. 206, 190 N. W. 683;Munson v. Rupker (Ind. App.) 148 N. E. 169;Moorefield v. Lewis, 96 W. Va. 112, 123 S. E. 564;Mitchell v. Raymond, 181 Wis. 591, 599, 195 N. W. 855, 858. It is true that in Massachusetts and Georgia the host is liable to the guest only where gross negligence is found (Massaletti v. Fitzroy, 228 Mass. 487, 118 N. E. 168, L. R. A. 1918C, 264, Ann. Cas. 1918B, 1088;Burke v. Cook, 246 Mass. 518, 141 N. E. 585;Epps v. Parrish, 26 Ga. App. 399, 106 S. E. 297); and in New Jersey only where the host has been guilty of willful negligence (Faggioni v. Weiss, 99 N. J. Law, 157, 122 A. 840). These decisions, however, are opposed to the general current of authority, and to the rule laid down in a case which came to this court (Clark v. Traver, 205 App. Div. 206, 207, 200 N. Y. S. 52, 53;Id., 237 N. Y. 544, 143 N. E. 736), where it was said: ‘It is well established that the duty which the defendant owed to the plaintiff as a licensee was to exercise ordinary and reasonable care not to increase the danger of the plaintiff while thus in defendant's car or to create any new danger.’ In Connecticut, where the standard of ‘active negligence’ prevails, it has been said that fast, improper, or inattentive driving would constitute such negligence. Pigeon v. Lane, 80 Conn. 237, 67 A. 886,11 Ann. Cas. 371. It would seem, therefore, that, in respect to all acts or omissions strictly relating to the operation of an automobile, the duty of the host toward his guests is to exercise ordinary care for their protection. The limitation, placed by the authorities upon the rule of ordinary care, that it applies in instances only where there is involved an increase of an existing hazard, or the creation of a new peril, is significant in its implication that as to existing risks, such as might inhere in the mechanism of the car or the host's lack of mechanical knowledge, the rule is inapplicable.

In Patnode v. Foote, 153 App. Div. 494, 496, 138 N. Y. S. 221, 222, a case frequently cited with approval (as in Beard v. Klusmeier, supra, and Cleary v. Eckart, 191 Wis. 114, 210 N. W. 267, 51 A. L. R. 576), the duty of a host, in reference to the condition of the vehicle furnished by him for the entertainment of his guest, was stated to be as follows: ‘Under the above principles, therefore, one who invites another to ride is not bound to furnish a sound vehicle or a safe horse.’ The case was cited in Dickerson v. Connecticut Co., supra, as authority for this proposition: ‘The guest on entering the automobile takes it and the driver as they then are, and accepts the dangers incident to that mode of conveyance.’ In many of the authorities the relationship between an automobile owner and a gratuitous passenger is likened to the relationship between a landowner and his guest, and the obligations...

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