Nepstad v. Randall

• Decision Date: 26 July 1967
• Docket Number: No. 10324,10324
• Citation: 152 N.W.2d 383,82 S.D. 615
• Parties: Axel A. NEPSTAD, Plaintiff and Respondent, v. Fred D. RANDALL, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 383

152 N.W.2d 383

82 S.D. 615

Axel A. NEPSTAD, Plaintiff and Respondent, v. Fred D. RANDALL, Defendant and Appellant.

No. 10324.

Supreme Court of South Dakota.

July 26, 1967.

Rehearing Denied Oct. 16, 1967.

Morgan & Fuller, J. L. Morgan, Mitchell, for defendant and appellant.

Davenport, Evans, Hurwitz & Smith, Ellsworth E. Evans, Sioux Falls, for plaintiff and respondent.

ROBERTS, Judge.

Plaintiff was injured on June 26, 1962, while on the golf course of the Mitchell Country Club near Mitchell. When the golf cart on which plaintiff was riding ran out of gasoline, defendant invited plaintiff and his golf partner to ride on the hood of the golf cart driven by him. Plaintiff charged defendant with negligence in operation of the golf cart causing plaintiff to be thrown to the ground. The record shows that the golf cart is a three-wheeled vehicle propelled by a gasoline motor; it is equipped with two seats, foot and hand brakes, conventional steering wheel and a rack for golf clubs. Seated at the right of defendant prior to the accident was George Millen and plaintiff and Robert Buche were sitting on the hood. The jury returned a verdict for plaintiff in the amount of $25,000. Motion for new trial was denied and defendant appeals.

The amended complaint alleges:

'That the plaintiff, without payment of compensation, was being transported upon said golf cart upon said golf course, and while plaintiff was riding upon the right front corner of said golf cart, the defendant carelessly and negligently turned said golf cart to the left while said cart was moving forward, thereby throwing plaintiff to the ground with great force and violence.

'That as the direct and proximate result of said negligence and said carelessness on the part of said defendant, plaintiff sustained a broken ankle and other injuries; that said injuries caused pain and necessitated medical and hospital care; that the fair and reasonable value of such medical and hospital attention, including physical therapy, amounted to approximately $1,000; that plaintiff was unable to take care of his business by reason of said injuries, is partially incapacitated by reason of said injuries, and plaintiff has been informed and believes and therefore alleges that the said injuries to his ankle and leg are permanent and will always partially incapacitate him and prevent him from doing his work and taking care of his business in the future; further, that said injuries will continue to cause him pain and suffering in the future.'

Defendant's answer asserted failure of the complaint to state a claim upon which relief could be granted, denied generally the allegations of the complaint and averred the defenses of assumption of risk and contributory negligence.

Defendant prior to trial made a motion to dismiss the amended complaint stating that since it appears from its allegations that defendant was operating a 'motor vehicle' within the meaning of the guest statute and that plaintiff was riding thereon as the guest of defendant without compensation it follows that in the absence of allegation that the conduct complained of was something more than ordinary negligence the complaint does not state a claim upon which relief can be granted. One of the grounds also urged in support of this position in defendant's motions for directed verdict and for new trial was that plaintiff failed to prove that plaintiff's injury was caused by willful and wanton misconduct of the defendant.

SDC 44.0362 reads as follows:

'No person transported by the owner or operator of a motor vehicle as his guest without compensation for such transportation shall have cause of action for damages against such owner or operator for injury, death, or loss, in case of accident, unless such accident shall have been caused by the willful and wanton misconduct of the owner or operator of such motor vehicle, and unless such willful and wanton misconduct contributed to the injury, death, or loss for which the action is brought; and no person so transported shall have such cause of action if he has willfully or by want of ordinary care brought the injury upon himself.'

The trial court concluded that the golf cart at the time of the accident was not a 'motor vehicle' within the meaning of this statute; that these words refer to a vehicle which operates upon a public highway. The guest statute is contained in Chapter 44.03 of the South Dakota Code of 1939. SDC 44.0301 contains definitions of terms in the chapter that are controlling unless as therein provided 'the context otherwise plainly requires.' Sub. (1) of this section defines 'vehicle' as follows: '(E)very device in, upon, or by which any person or property is or may be transported or drawn Upon a public highway, excepting devices moved by human power or used exclusively upon stationary rails or tracks; provided that for the purposes of this chapter, a bicycle or a ridden animal shall be deemed a vehicle' (Emphasis added), Sub. (2) of the same section defines 'Motor Vehicle' as follows: '(E)very vehicle, as herein defined, which is self-propelled'. If a motor driven golf cart were being operated upon a public highway for the purpose of transporting persons or property, it would undoubtedly be considered a 'motor vehicle' within these statutory provisions. They contain reference to vehicles by which any person or property 'may be' transported or drawn upon a public highway. The provisions of SDC 44.03 are regulatory in nature governing the use of vehicles upon public highways and the conduct of owners and drivers of vehicles operated thereon. The language in question refers to the type or class of self propelled vehicles primarily designed for transportation of persons or property on public highways. We agree with the holding of the Supreme Court of Wisconsin in Nelson v. Ohio Casualty Insurance Co., 29 Wis.2d 315, 139 N.W.2d 33, to the effect that a highway safety statute was not applicable to a class of motor propelled vehicles so designed that they might never be used for transporting persons or property upon a public highway and that such a motor vehicle is not within the terms of the statute unless being operated upon a public highway at the time of an accident. We hold that a motor driven golf cart while being operated on a golf course is not a 'motor vehicle' within the meaning of the guest statute.

In the absence, therefore, of statutory provisions otherwise providing, there existed the common law relationship between the parties of guest and host. This court has held that under such circumstances it is the duty of the host to exercise ordinary care to prevent injury to his guest. Barger v. Chelpon, 60 SD. 66, 243 N.W. 97; Holdhusen v. Schaible, 60 S.D. 275, 244 N.W. 392. In other words, with respect to the operating conditions of the vehicle which are known or should be known to the guest there is no actionable breach of duty on the part of the host or operator of the vehicle; the duty of the host extends only to refrain from increasing the danger or creating a new danger. Petteys v. Leith, 62 S.D. 149, 252 N.W. 18; Hall v. Hall, 63 S.D. 343, 258 N.W. 491; Wakefield v. Singletary, 76 S.D. 417, 80 N.W.2d 84.

Defendant contends that plaintiff assumed the dangers incident to the position which he took on the hood of the golf cart; that there was no handle or other part of the vehicle which he could readily grasp and no place to brace his feet to prevent being thrown from the vehicle traveling over bumpy stretches of the golf course or upon the turning of the highly maneuverable three-wheeled vehicle; and that knowing and appreciating the hazards involved plaintiff did not exercise ordinary care for his own safety. If plaintiff's exposure of himself to known hazards constituted a failure to exercise ordinary care for his own safety, it does not follow that his conduct was the proximate cause of his injury. Plaintiff did not assume the risk of danger or hazard caused by defendant driver's unexpected negligence. Zeigler v. Ryan, 65 S.D. 110, 271 N.W. 767; Stoll v. Wagaman, 73 S.D. 186, 40 N.W.2d 393. The conduct of a person which furnishes the situation or condition whereby an unforeseen and unanticipated act causes his injury will not bar recovery for the injury.

The record discloses that there was ample evidence, much of which was without dispute, to justify submission to the jury of the question of negligence on the part of the defendant. Defendant testified on cross examination concerning the accident as follows:

'Q Now, this wasn't a case where you slowed down and made a turn, was it? A As I recall, we hadn't done much slowing down before we turned simply because we didn't know exactly where the ball was. When we saw the ball, the slowing down took place.

'Q And when I took your deposition back last spring, I asked you about how you made this turn. * * * I said, 'Question: About how fast do you think you were going when you made the turn? Answer: I don't think we were slowed down too much from the normal speed. I think it was a pretty fast turn, as I remember it. Mr. Buche went off of the front side and Mr. Nepstad the right side, and the cart turned sharply to the left.' Now, is that the question I asked you and the answer you gave me? A That's right.

'Q And so that we have this clear, you didn't try to slow that cart down and then make a turn, but rather, what you did was, you came up there and you made a sharp turn to the left, didn't you? A Right.

'Q Well, maybe you don't like my words, Mr. Randall, but suppose we put it this way. I asked you previously whether this was a prank or not, and you said you weren't sure. Do you recall your testimony along that line? A Yes.

'Q But, in any event, what you sought to do and what you accomplished was simply this. You came up there with that cart, you made that sharp turn with the front wheel--and there's only one front wheel? A Right.

'Q It's got that big tire on it and that...