Kelly v. Gagnon

• Decision Date: 17 April 1931
• Docket Number: 27610
• Citation: 236 N.W. 160,121 Neb. 113
• Parties: MILES KELLY, ADMINISTRATOR, APPELLEE, v. HELEN GAGNON ET AL., APPELLANTS
• Court: Nebraska Supreme Court

236 N.W. 160

121 Neb. 113

MILES KELLY, ADMINISTRATOR, APPELLEE, v. HELEN GAGNON ET AL., APPELLANTS

No. 27610

Supreme Court of Nebraska

April 17, 1931

APPEAL from the district court for Richardson county: FREDERICK W MESSMORE, JUDGE. Reversed.

REVERSED.

Syllabus by the Court.

The owner of an automobile is required to exercise ordinary care in its operation to prevent injury to an invited guest riding therein.

A father, who had frequently accepted an invitation to ride with his adult daughter in her automobile, accepted whatever risk attended the degree of proficiency as a driver which the daughter possessed.

The owner and driver of an automobile assumes a position of responsibility when she invites guests to accompany her. She must exercise at all times that degree of ordinary care which the great mass of mankind under the same or similar circumstances would exercise.

The driver and owner of an automobile, who acted in good faith and in accordance with her best skill in an emergency, cannot be held liable for the death of her father, who was riding as her guest, on the theory that she failed to exercise ordinary care in the management of the car solely because she applied the brakes, which may have contributed to its overturning.

Issues of negligence are questions for the jury only when the evidence is sufficient to sustain a finding of negligence.

The puncture of an automobile tire by a large spike, causing the car to upset and fatally injuring a guest therein, will, under the evidence set out in the case, be considered an accident, which is a casualty which could not be prevented by ordinary care and diligence.

Under evidence in this case, the motion for a directed verdict should have been sustained.

Appeal from District Court, Richardson County; Messmore, Judge.

Action by Miles Kelly, administrator of the estate of John Gagnon, deceased, against Helen Gagnon and others. Judgment for plaintiff, and defendants appeal.

Reversed.

Chambers & Holland and Reavis & Reavis, for appellants.

John C. Mullen, contra.

Heard before GOSS, C. J., ROSE, DEAN, GOOD, EBERLY, DAY and PAINE, JJ.

OPINION

PAINE, J.

This is an action for damages brought by Miles Kelly, administrator of the estate of John Gagnon, deceased, appellee, against three adult children of the deceased, Helen Gagnon, Clara Gagnon, and Joe Gagnon, appellants. The petition alleged that the action was brought for the benefit of Ella Gagnon, the widow of the deceased, and John Gagnon, an incompetent son of deceased, and charged that the daughter, Helen Gagnon, invited her father, now deceased, to take a trip in her automobile with her as her guest. While so riding in South Dakota one of the tires was punctured by a nail and the car overturned, and from injuries received at said time the father, John Gagnon, died the next day.

The petition, as a basis for the recovery of $ 10,000 damages, set out six specific acts of negligence on the part of Helen Gagnon, as follows: (1) Her failure to have the automobile in proper working order at the time she invited the deceased to ride with her, in that the tires of the said automobile were out of repair; (2) in driving the automobile when she knew that the said tires were liable to burst; (3) by inviting her father to take a ride in the said automobile when she knew she could not control it in the event one of the tires became punctured; (4) in driving the said automobile at an excessive and dangerous rate of speed when she knew she could not control it in the event one of the tires burst; (5) in driving the said automobile at a rate of speed which she knew would endanger the life of her father; (6) in grossly, negligently and carelessly applying the brakes of the said automobile, bringing it to a violent stop and causing it to overturn.

The answer of the appellants denied all of the allegations of negligence, and pleaded that the cause of the accident was the sudden and unforeseen puncturing of the automobile tire by the spike, which caused the air to be suddenly expelled, and denies that the defendants or either of them were guilty of any negligence which contributed in any way to the accident.

Trial was had to a jury, and a verdict was returned, signed by ten jurors, for $ 2,000, and motion for a new trial was overruled.

Two of the errors relied on for a reversal of the case are, first, that no negligence was proved on the part of Helen Gagnon, and, second, that the court should have sustained the defendants' motion for a directed verdict at the close of the plaintiff's testimony.

The facts, as shown by a careful reading of the bill of exceptions, disclose that on September 13, 1929, Helen Gagnon and her sister Clara, who were self-supporting women, living at home, purchased this Studebaker sedan of a local dealer in Falls City, Nebraska, trading an old car in on it and paying the balance in cash; that during the following month the car was driven almost daily, and then Helen Gagnon invited her father, mother, and youngest brother, John, to take a trip to South Dakota with her as her guests. The accident happened on October 12, 1929, about two miles from Gregory, South Dakota, when they were traveling on a good country road, with no other cars in the immediate vicinity, and driving about 30 miles an hour. A 5-inch, 16-penny spike penetrated the tire on the left rear wheel. The car swayed from side to side, and the driver, Helen Gagnon, applied the brakes and the car tipped over, her father receiving a cut on the head and an injury to his spine, from which injury he passed away near Fremont, Nebraska, the following day as they were taking him to an Omaha hospital. The deceased was 81 years of age, a lawyer, who had been in good health and earning around $ 2,500 a year. His wife and the youngest brother, John, who were in the car at the time of the accident, were both entirely dependent upon the deceased for support. John Gagnon, above referred to, was 26 years of age, but unable to do any work at all, having been operated upon 23 times for brain abscesses.

During the trial a stipulation was made a part of the record that the expectancy of the deceased was from 4.78 years by the American table to 5.51 years by the Carlisle table, and that the speed law of the state of South Dakota allows 40 miles an hour in driving automobiles upon roads such as the one where the accident occurred.

Shortly after the case was filed the defendants' attorneys, Chambers & Holland, took the evidence of their client, Helen Gagnon, and also of the garageman and the mechanic in South Dakota, by deposition.

They complain in their brief that, when the case was tried, Helen Gagnon was the first witness called by plaintiff, and in the brief claim they are preparing their case without a client. When the plaintiff closed his evidence, the defendants moved for an instructed verdict, and, upon this motion being overruled, defense rested without introducing any evidence, as the depositions they had taken in South Dakota were offered and used by the plaintiff.

1. The first four specific acts of negligence charged in the petition, as set out herein, relate to driving the car with tires not new but somewhat worn.

The evidence on the condition of the tires was given by the defendant Helen Gagnon, as follows: "Q. What was the condition of the tires? A. Well, they were worn; in places they were worn clear through to the fabric. * * * Q. Had you given any considerable thought as to whether these tires might blow out on the road? A. Well, I really didn't expect them to blow out; I thought they would get us there and bring us home again. Q. Well, they didn't blow out, did they? A. Well, they didn't make any noise; no. Q. The thing that caused this accident was the spike entering the tire, wasn't it? A. Yes, sir. Q. So it wasn't a blow-out or a defect as far as you know in this left rear tire that caused that spike to enter? A. No, sir." "Q. About how large a spike was it? A. Oh, it looked to me to be almost as big around as my little finger. Q. And about how long? A. Well, it was at least an inch and a half, that was bent over on the outside of the tire. * * * Q. A spike large enough to enter almost any tire if it got in the right way? A. I think so. * * * Q. At that time after this spike entered the tire, you did think though that the best thing to do would be to put on the brakes? A. Yes, sir. * * * Q. And that was your best judgment at the time this accident happened? A. I thought I had better stop."

John Sully, a mechanic, 42 years of age, gave his evidence by deposition. Having been sent out to bring in the automobile, he found the car upright with the left rear tire down and took it off and put on the spare tire and drove the car into town, and on direct examination testified: "Q. As to the character of the casings as to being worn or otherwise, what would you say as to that? A. The casings were worn to a certain extent. Q. Was the part of original roughness on the tread of the casing? A. Yes. Q. Does that answer apply to the casing that you removed from the car as well as the other casings on the car? A. Yes."

It is clear that these tires were in fair, second-hand condition, not all of the tread being worn smooth.

The owner of an automobile who invites another to ride with him as a guest, the invitation being accepted, does not thereby become the insurer of the safety of the guest, but is bound to use ordinary care not to increase the danger to the guest. See Bauer v. Griess, 105 Neb. 381, 181 N.W. 156.

"Where the owner of a private motor vehicle gratuitously carries another person therein as a passenger, he owes such passenger the duty of exercising ordinary care in the operation of the vehicle, and will be...