Martins v. Kueter, 8054.

• Decision Date: 09 July 1937
• Docket Number: No. 8054.,8054.
• Parties: MARTINS v. KUETER.
• Court: South Dakota Supreme Court

65 S.D. 384

274 N.W. 497

MARTINS

v.KUETER.^a1

No. 8054.

Supreme Court of South Dakota.

July 9, 1937.

Appeal from Circuit Court, Minnehaha County; Lucius J. Wall, Judge.

Action by Eunice Martins, an infant, by John C. Martins, her guardian ad litem, against Frank N. Kueter. From a judgment on a verdict for plaintiff, defendant appeals.

Affirmed.

John C. Mundt and Tom Kirby, both of Sioux Falls, for appellant.

Louis H. Smith, of Sioux Falls, for respondent.

RUDOLPH, Presiding Judge.

The only question presented in this case is the sufficiency of the evidence to support the verdict. The plaintiff having recovered a verdict, we will state the evidence in its light most favorable to her. The plaintiff sustained injuries when an automobile driven by the defendant and in which she was riding, turned over as defendant attempted to negotiate a turn in the road. The plaintiff is a girl sixteen years of age, and the defendant is a man forty-six years of age. On the evening of April 11, 1936, the plaintiff and three other girls met the defendant on the streets of Humbolt, S. D., and together they went into the “Rex Bar” and consumed a pitcher of beer. After drinking the beer, the four girls and the defendant and a Mr. Mathews entered defendant's car and drove south of Humbolt. On the trip the defendant drove about 70 miles an hour and “swerved the car from side to side, zigzagged back and forth.” The girls complained about the speed and manner of driving and asked that they be taken back to town, which request was granted, but after arriving in town defendant refused to let the girls out of the car and told them: “You are going for this ride whether you like it or not.” Defendant then drove the car west of Humbolt and on this drive “drove the car not less than eighty miles an hour.” Defendant told the girls he was taking them for a “thrill ride.” We quote a portion of the testimony:

“This was after dark and the road was hilly. The sensation I had when we went over the hills was that we just floated over them. Coming down the Parker hill I hollered, I don't know what I said. The others told him not to be so reckless. The defendant didn't say anything. At the time one of the girls said to him, 'Stop Frank, you can't tell what is at the bottom of these hills.”'

After driving about 3 miles on this road and in the manner above described, the defendant attempted to negotiate a turn in the road at a time when he was driving his car not less than 70 miles an hour. The car turned completely over and the plaintiff was severely injured. The defendant had lived in the immediate community all of his life and was familiar with the road on which he was driving at the time the accident occurred.

The trial court instructed the jury that the plaintiff was a guest passenger in defendant's car and submitted the case to the jury under the law announced by this court in the case of Melby v. Anderson, 266 N.W. 135, 136. Under these instructions, the only question presented by this record is whether the jury was justified in finding that the accident was caused by “the gross negligence or wilful and wanton misconduct” of the defendant as required by chapter 147, Laws of 1933, and as defined by this court in the Melby v. Anderson Case.

The evidence is entirely sufficient in our opinion to render the defendant liable within the meaning of the statute. The defendant certainly did something in the operation of a motor vehicle which he should not have done. His every action from the...