Holcomb v. Striebel, 8130

• Decision Date: 24 February 1965
• Docket Number: No. 8130,8130
• Parties: Barbara C. HOLCOMB, Plaintiff and Appellant, v. William R. STRIEBEL, Defendant and Respondent. LaMoure Besse and William R. Striebel, Defendants.
• Court: North Dakota Supreme Court

Page 435

133 N.W.2d 435

Barbara C. HOLCOMB, Plaintiff and Appellant, v. William R. STRIEBEL, Defendant and Respondent LaMoure Besse and William R. Striebel, Defendants.

No. 8130.

Supreme Court of North Dakota.

Feb. 24, 1965.

Syllabus by the Court

1. In an action for damages for injuries, received by plaintiff while riding as a guest in a motor vehicle, plaintiff has burden of proving that the injuries were proximately caused by the intoxication, gross negligence or willful misconduct of the owner or operator of such motor vehicle.

2. Gross negligence within the automobile guest statute, is no care at all, or the omission of the care which even the most inattentive and thoughtless seldom fail to make their own concern, evincing a reckless temperament and lack of care which is practically willful in its nature.

3. Circumstantial evidence is not sufficient to establish facts sought to be proved if, though consistent with such facts, it is equally consistent with other conclusions.

4. Inadvertence is not gross negligence.

5. Temporary dozing is not gross negligence, in the absence of a prior warning of the likelihood of sleep.

6. The court finds that the facts in the case are at least as equally consistent with the conclusion that plaintiff's injuries were proximately caused by the ordinary negligence of the defendant as they are that such injuries were caused by defendant's gross negligence.

Lanier, Knox & Shermoen, Fargo, and J. O. Thorson, McClusky, for appellant.

Nilles, Oehlert & Nilles, Fargo, for respondent.

JANSONIUS, District Judge.

This is an action brought by plaintiff for damages for personal injuries incurred in an automobile accident in which she was riding as a guest. The provisions of the guest statute, Chapter 39-15 NDCC, are involved but limited by the pleadings to a claim of willful misconduct and gross negligence on the part of the defendant, William R. Striebel.

The case was tried to the court without a jury. As a result of the trial judgment was entered dismissing plaintiff's action. Plaintiff has appealed from the judgment and demanded a trial anew in this court.

Plaintiff and defendant were students at North Dakota State University at the time of the accident. Plaintiff was the social chairman of her sorority which was to hold its formal spring party on the evening of May 19, 1961. The plan called for a formal dance early in the evening and a picnic following the dance. The plaintiff had a date with the defendant, William R. Strieble. They were accompanied by another couple to the dance and later to the picnic. All expenses for the party were paid by the girls of the sorority. Following the formal dinner and dance the girls and boys went to their respective dormitories to change clothes and then left for the picnic. They stayed together throughout the evening leaving the picnic at about 3:30 o'clock a. m., the other couple in the front seat with the man driving. Plaintiff and defendant were in the back seat. The driving was criticized as they were proceeding down the road and upon arriving at Highway 81, the car stopped and the defendant announced that he was going to drive. He got into the front seat and drove from that point on, three people being in the front seat and the plaintiff in the rear. Plaintiff almost immediately fell asleep. Approximately three miles down the highway the car ran into a concrete abutment on which there was a lighted sign reading 'Do Not Enter Left Lane.' Plaintiff does not remember the impact and has stated that in her opinion the defendant was not intoxicated. The weather was clear, the headlights were on and visibility was good. Plaintiff sustained very severe injuries.

The investigating officer testified that he received a call reporting the accident at 4:03 a. m. and proceeded directly to the scene. The officer identified the scene from various exhibits all of which show the concrete divider in the middle of the highway. He recalled that the flashing light on the top of the 'Do Not Enter Left Lane' sign was still flashing after the accident, and he testified that there were no tire or skid marks anywhere approaching the point of impact. He testified that the concrete base holding the sign which was struck by the car was ripped out as depicted in the exhibits and that the concrete base in which it was set was about 25 or 30 feet long and about three feet wide; that it had been moved northward an inch or more. He further testified that there was no evidence that brakes had ever been applied.

Since this is a guest case the provisions of Section 39-15-03 NDCC apply and plaintiff may not recover unless her injuries were proximately caused 'by intoxication, gross negligence or willful misconduct' of the defendant.

In her complaint plaintiff alleges generally that her injuries were proximately caused by the willful misconduct and gross negligence of the defendant. There is no issue of intoxication in the case. No specific acts of negligence are alleged.

Plaintiff had the burden of establishing by a fair preponderance of the...