Nelson v. Nygren

Decision Date26 April 1932
Citation181 N.E. 52,259 N.Y. 71
CourtNew York Court of Appeals Court of Appeals


Action by Allen Nelson against Arnold Nygren. From a judgment of the Appellate Division (233 App. Div. 573, 253 N. Y. S. 539), affirming a judgment of the Trial Term in favor of plaintiff for damages suffered as a result of an automobile accident, defendant appeals.


Appeal from Supreme Court, Appellate Division, Fourth Department.

Frank Gibbons, of Buffalo, for appellant.

J. Russell Rogerson, of Jamestown, for respondent.


At about 12:30 a. m. on a clear night, plaintiff and defendant left Olean in defendant's automobile,intending to drive to Maple Springs, a distance of from 65 to 70 miles. As they left Olean the plaintiff told the defendant he would drive when they reached Randolph, that being approximately the half-way point, and to awaken him when they reached that place. The defendant acquiesced. The plaintiff then put blankets around himself, curled up on the seat, and went to sleep.

Before reaching Randolph, and while the plaintiff was still asleep, the car left the highway. The plaintiff was found under the car, seriously injured. The defendant did not testify, but there is testimony to the effect that he said to the sheriff shortly after the accident, when asked how it occurred, that he must have fallen asleep. There is affirmative testimony that neither the plaintiff nor the defendant had been drinking, and that shortly before the accident the car was traveling at a speed of not to exceed 35 or 40 miles per hour. The plaintiff and the defendant were both experienced drivers and entirely familiar with the road, which was a state highway, straight, dry, and in good condition.

The trial court submitted to the jury the question of the plaintiff's freedom from contributory negligence as one of fact. The jury rendered a verdict for the plaintiff which was affirmed by the Appellate Division, one justice dissenting.

The sole question presented upon this appeal is whether, under the facts and circumstances in this particular case, the conduct of the plaintiff, in voluntarily going to sleep with the consent of the driver, while riding as a guest in an automobile, constituted contributory negligence as a matter of law, so as to preclude a recovery against the driver, who has been found to have been negligent.

It has been decided in Massachusetts that a guest riding on a rear seat who voluntarily goes to sleep is guilty of contributory negligence as a matter of law. Oppenheim v. Barkin, 262 Mass. 281, 159 N. E. 628, 61 A. L. R. 1228. There the guest did not go to sleep by arrangement with the driver. It should be noted that in that state a guest can recover against a driver only in the event of gross negligence.

The same rule was adopted in Wisconsin in a case where a mother remained asleep while riding as a guest of her son, who, while driving the car, had dozed off after they had been on the road all night. Krueger v. Krueger, 197 Wis. 588, 222 N. W. 784. But in the later case of Schmidt v. Leuthener, 199 Wis. 567, 227 N. W. 17, it was decided that the act of a front seat guest in closing his eyes and trying to sleep while on a long trip was not contributory negligence as a matter of law which would preclude his recovery for the driver's negligence. In the same case it was said that a back seat guest was not guilty of contributory negligence as a matter of law in reading a newspaper.

No other case holding such conduct to constitute contributory negligence as a matter of law has been called to our attention. On the contrary, we find that in several states such conduct on the part of a guest has been decided not to constitute contributory negligence as a matter of law.

In Pennsylvania, where a guest is deemed negligent only if he fails to take measures to avoid ‘apparent dangers,’ it was decided that a sleeping guest was not guilty of contributory negligence as a matter of law, but the question was treated as one of fact to be decided in the light of the circumstances surrounding the case. Simrell v. Eschenbach, 303 Pa. 156, 154 A. 369. In Maryland, in a case where the driver, unknown to the sleeping guest, was unfamiliar with the road, and permitted the car to run off and hit a telegraph pole, it was held that the guest was not guilty of contributory negligence as a matter of law. Chesapeake & Potomac Tel. Co. of Baltimore v. Merriken, 147 Md. 572, 128 A. 277, 41 A. L. R. 763. Likewise, in Vermont, it has been held that the fact that a passenger riding on a rear seat at the time of the accident may have been asleep...

To continue reading

Request your trial
69 cases
  • Babcock v. Jackson
    • United States
    • New York Court of Appeals Court of Appeals
    • May 9, 1963
    ...under this State's substantive law of torts (see, e. g., Higgins v. Mason, 255 N.Y. 104, 108, 174 N.E. 77, 78-79; Nelson v. Nygren, 259 N.Y. 71, 181 N.E. 52), the defendant moved to dismiss the complaint on the ground that the law of the place where the accident occurred governs and that On......
  • Crout v. Haverfield Int'l, Inc.
    • United States
    • U.S. District Court — Western District of New York
    • September 7, 2017
    ...dispute upon the facts and only one conclusion can be drawn therefrom that it may be decided as a question of law." Nelson v. Nygren, 259 N.Y. 71, 75, 181 N.E. 52 (1932) ; see, e.g., Nallan v. Helmsley–Spear, Inc., 50 N.Y.2d 507, 516–17, 429 N.Y.S.2d 606, 407 N.E.2d 451 (1980) ("[W]e have o......
  • Miller v. Union Pac Co
    • United States
    • U.S. Supreme Court
    • December 4, 1933
    ...v. Southern Pac. Co. (C.C.A.) 8 F.(2d) 452; Baker v. Lehigh Valley R. Co., 248 N.Y. 131, 135, 136, 161 N.E. 445, 447; Nelson v. Nygren, 259 N.Y. 71, 75, 181 N.E. 52; Crough v. New York Central R.R. Co., 260 N.Y. 227, 232, 183 N.E. 372. In the Baker Case, supra, the New York court, holding t......
  • Cesario v. Chiapparine
    • United States
    • New York Supreme Court — Appellate Division
    • May 25, 1964 this record do not fairly impel only the conclusion of Vincenza's contributory negligence as a matter of law (cf. Nelson v. Nygren, 259 N.Y. 71, 76, 181 N.E. 52, 54). Her knowledge of the danger and the presence of an alternate route via the front door were circumstances from which the j......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT