Liston v. Reynolds

Decision Date02 February 1924
Docket Number5346.
Citation223 P. 507,69 Mont. 480
CourtMontana Supreme Court

Appeal from District Court, Missoula County; James M. Self, Judge.

Action by Roy Liston against James Reynolds. Judgment for plaintiff and defendant appeals. Judgment modified, and affirmed as modified subject to plaintiff's consent.

J. E Kelly, of Dillon, and Murphy & Whitlock, of Missoula, for appellant.

Harry H. Parsons and Mulroney & Mulroney, all of Missoula, for respondent.


This action was brought by plaintiff to recover damages from the defendant for the death of his minor son, Burnell Liston. The death resulted from an automobile accident which occurred on the county fair grounds at Missoula on July 4, 1921, when certain automobile races were being conducted on a half-mile elliptical track the curves of which were on the east and west ends. The last race of the day, designated as a "free-for-all," was for 25 miles, and there were about a dozen cars entered, among them being two belonging to the defendant, one of which was driven by a man named Naegele, and the other by defendant himself. A third car in the race was a greencolored Ford driven by one Zeising.

Burnell Liston rode with the defendant in the race. The plaintiff contends that defendant's car completed the 25 mile run ahead of all other cars, but that after finishing and winning the race defendant continued to drive his car at a negligently dangerous rate of speed around the track, and in doing so negligently ran into the Zeising car, which caused defendant's car to veer from its course, run through the outside fence surrounding the track, and kill the decedent.

The defendant's answer denied all allegations of negligence contained in the complaint, and set up affirmatively that decedent's death was due to his own fault and negligence and arose from injuries, the risk of which he had assumed.

The trial of the cause resulted in a verdict and judgment in favor of the plaintiff for the sum of $5,500. Defendant made a motion for a new trial, which was denied. The appeal is from the judgment.

The circumstances of this case are unusual. No similar one has come to our attention. It was tried and submitted to the jury upon the theory advanced by plaintiff that so long as the race was in progress the decedent assumed all the ordinary risks of injury incident thereto, but that after the race was completed and won by the defendant the ordinary relation of host and invitee arose between him and the decedent, and the former became obligated to exercise reasonable care in the operation of his car, and not to unreasonably expose the decedent to danger and injury by increasing the hazard of his situation.

The defendant's position is that at the time of the accident Liston was at most a bare trespasser or licensee upon the defendant's car; that he had voluntarily assumed all the risk incident to the position which he occupied; that defendant's only duty was to refrain from doing him a willful injury, and that this relation continued to exist after the race had been won by defendant and down to the time of the accident, for which reason the plaintiff could recover only upon pleading and proving such a willful injury.

1. The first contention made by defendant on this appeal is that the complaint does not state a cause of action for the reason that it fails to allege willful injury.

We think the complaint sufficiently shows that at the time of the accident the decedent occupied the position of an invitee. It says expressly in paragraph 4:

That the defendant "requested the said Burnell Liston to ride with and accompany him in the said race in competition with other racers; * * * that said invitation was accepted by said Burnell Liston. * * *"

And in paragraph 5:

"That said deceased got into said racing automobile, occupied the same and ran the course and race at the special instance and request of the defendant."

In case of an invitee the duty owed is to use reasonable care for the guest's safety. Glover v. Chicago, M. & St. P. Ry. Co., 54 Mont. 446, 171 P. 278; Montague v. Hanson, 38 Mont. 376, 99 P. 1063. We think the rule applies generally to guests riding with the owner or operator of an automobile. As stated by the court in Perkins v. Galloway, 194 Ala. 265, 69 So. 875, L. R. A. 1916E, 1190:

"The express or implied duty of the car owner and driver to the occupant of the car is to exercise reasonable care in its operation not to unreasonably expose to danger and injury the occupant by increasing the hazard of that method of travel. He must exercise the care and diligence which a man of reasonable prudence, engaged in like business, would exercise for his own protection and the protection of his family and property--a care which must be reasonably commensurate with the nature and hazards attending this particular mode of travel."

In an extended note upon this subject contained in 20 A. L. R. at page 1014, where numerous cases are collected, the writer says:

"The rule is established by the weight of authority that the owner or operator of an automobile owes the duty to an invited guest to exercise reasonable care in its operation, and not unreasonably to expose him to danger and injury by increasing the hazards of travel."

What is meant by ordinary care must be determined from the facts presented in each case.

"But this term is relative; and ordinary and reasonable care--which is, after all, the most that the law requires--means, when used in this connection, that degree of care which prudent men, skilled in the particular business, would be likely to exercise under the circumstances. The care must be proportionate to the danger. What is ordinary care in a case of extraordinary danger would be extraordinary care in a case of ordinary danger, and what would be ordinary care in a case of little danger would be much below this in case of great danger. Thomp. Neg. 152, and cases cited." Diamond v. Northern P. R. Co., 6 Mont. 580, 13 P. 367.

In Railway Co. v. Ives, 144 U.S. 408, 12 S.Ct. 679, 36 L.Ed. 485, quoted with approval in Cameron v. Kenyon-Connell Com. Co., 22 Mont. 312, 56 P. 358, 44 L. R. A. 508, 74 Am. St. Rep. 602, the court said:

"There is no fixed standard in the law by which a court is enabled to arbitrarily say in every case what conduct shall be considered reasonable and prudent, and what shall constitute ordinary care, under any and all circumstances. The terms 'ordinary care,' 'reasonable prudence,' and such like terms, as applied to the conduct and affairs of men, have a relative significance, and cannot be arbitrarily defined. What may be deemed ordinary care in one case, may, under different surroundings and circumstances, be gross negligence. The policy of the law has relegated the determination of such questions to the jury, under proper instructions from the court. It is their province to note the special circumstances and surroundings of each particular case, and then say whether the conduct of the parties in that case was such as would be expected of reasonable, prudent men, under a similar state of affairs."

The complaint sets out that after the race had been won by defendant he negligently failed and omitted to stop or slow down his car, as he should have done; and in the charging part thereof, in paragraph 5 as amended at the trial, alleges that--

"After the said race had been 'pulled off' and run, as scheduled and intended, around and over said race course, the defendant herein carelessly and negligently ran, operated and speeded the said racing car, unnecessarily but in a spirit of recklessness, for about another half mile around said track or course; that at said time and place there were numerous other automobiles and racing cars traveling and running over said course, all going in the same direction as defendant; that, notwithstanding the fact that the race was over so far as defendant was concerned, and many of said cars were running at high speed to win second prize in said contest, this defendant recklessly, carelessly, and negligently ran and operated his said racing car at a high, dangerous, and terrific rate of speed, to wit, over one hundred (100) miles per hour, around and over said race course, * * * passing other cars, and carelessly and negligently ran against and collided with one of said competing cars at the easterly end of said course and track, so that defendant's own car was thereby deflected in its course, then and there, and caused thereby, causing his own car to run into and through the outer fence of said track, which was adjacent thereto, and then and there wounded and killed the said Burnell Liston; and that said killing was directly and proximately caused by the defendant's said negligence."

From these allegations it is made to appear that the accident which resulted in Liston's death occurred after the race was finished so far as the defendant was concerned; that after its completion defendant's duty was to slow down or stop his machine; that he carelessly, recklessly, and negligently failed and omitted to perform this duty, but on the contrary, drove his car for a distance of nearly one-half mile at a dangerous and terrific rate of speed amongst other cars, in endeavoring to pass one of which his car collided with it and caused the accident. These allegations are sufficient to state a cause of action on the ground of negligence.

2. It is next urged that the evidence is insufficient to sustain the judgment. This point was first made by motion for nonsuit at the close of plaintiff's case in chief. Defendant did not stand upon this motion, but introduced evidence in his own behalf, and thus all the testimony in the case is before the court for consideration...

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