Norgart v. Hoselton
| Decision Date | 10 October 1949 |
| Docket Number | 7130. |
| Citation | 39 N.W.2d 427,77 N.D. 1 |
| Parties | NORGART v. HOSELTON et al. |
| Court | North Dakota Supreme Court |
Syllabus by the Court.
1. A judgment will not be reversed because of errors committed upon the trial of an action if the unsuccessful party would not have been entitled to judgment in any event.
2. The owner or driver of an automobile is not liable for injuries sustained by a guest while riding in such automobile unless the guest's injuries were proximately caused by the intoxication, willful misconduct or gross negligence of such owner or driver.
3. Gross negligence is, to all intents and purposes, no care at all. It is the omission of the care which even the most inattentive seldom fail to take of their own concerns. It evinces a reckless temperament. It is a lack of care which is practically willful in its nature.
4. Mere inadvertance is not gross negligence.
5. In this case the evidence is insufficient to establish or permit a reasonable inference of intoxication, willful misconduct or gross negligence.
H C. DePuy, Grafton, for plaintiff and appellant.
Harold D. Shaft, Grand Forks, for defendants and respondents.
In this action, plaintiff sought to recover damages suffered by him because of the death of his wife, whose injury and death he alleged were proximately caused by the intoxication, gross negligence and willful misconduct of the defendant Roland Hoselton. The defendants in their joint answer denied any intoxication, negligence or willful misconduct on the part of Roland Hoselton and alleged contributory negligence on the part of plaintiff's deceased wife. The action was tried before a jury in the District Court of Pembina County. The jury returned a verdict in favor of the defendants for the dismissal of the action and judgment was entered in accordance with the verdict. Plaintiff has appealed from the judgment and has specified eleven claimed errors. The defendants concede that some errors may have been committed during the course of the trial, but say that the errors, if any, were not prejudicial because there is no evidence in the record of intoxication, gross negligence or willful misconduct on the part of the defendant Roland Hoselton. If this contention is correct it is decisive of this appeal.
A judgment will not be disturbed because of errors committed upon a trial of an action if the record discloses that the unsuccessful party would not have been entitled to judgment in any event. Prairie School Tp. v. Haseleu, 3 N.D. 328, 55 N.W. 938; Walton v. Mattson, 22 N.D. 532, 135 N.W. 176; Baird v. Nelson, 60 N.D. 503, 235 N.W. 351.
Concededly plaintiff's wife was, at the time of her injury and death, a guest of the defendant Roland Hoselton. Plaintiff would therefore be entitled to judgment in this action only in the event that the evidence was sufficient to permit a reasonable conclusion that his wife's injury and death were proximately caused by the intoxication, willful misconduct or gross negligence of the defendant Roland Hoselton. Schwager v. Anderson, 63 N.D. 579, 249 N.W. 305. Chapter 39-15, NDRC 1943.
On the afternoon of April 8, 1947, when Roland Hoselton and a friend named Bergstrom were about to leave Drayton, N. D., upon a trip to East Grand Forks, Minn. and return, in an automobile owned by Wheeler Hoselton, the father of Roland, plaintiff asked Roland if he would stop in Grand Forks, N. D., pick up his wife and small son and transport them back to Drayton. This, Roland agreed to do. At sometime in the afternoon before leaving Drayton, Roland Hoselton and Bergstrom had each drunk, at most, four bottles of beer. They left Drayton at about 5:15 p. m., drove at an estimated speed of from 40 to 50 miles per hour and arrived in Grand Forks at about 6:30 p. m. The distance from Drayton to Grand Forks is approximately 48 miles. Only an estimation of their rate of speed was possible because the speedometer on the car was not in working order. Upon their arrival in Grand Forks, they called at the home where plaintiff's wife was visiting and were informed by her that she would be ready to leave for Drayton in 45 minutes. They then proceeded to East Grand Forks to transact their business. During their stay in East Grand Forks, which was approximately 45 minutes, Hoselton and Bergstrom each drank two one-ounce drinks of whiskey diluted with coca-cola. They returned to Grand Forks, picked up plaintiff's wife and small son and started back to Drayton at about 7:30 p. m. Plaintiff's wife sat in the middle of the front seat of the car between Hoselton and Bergstrom. She held the baby on her lap. Both Hoselton and Bergstrom testified that the estimated speed of the car on the trip back toward Drayton was from 40 to 50 miles per hour. The accident occurred at a point upon Highway 44 about 7 miles south of Drayton. At that point the highway was 24 to 26 feet wide. The shoulders of the highway sloped gradually to a ditch on either side. The shoulders were soft and there was water in the ditches. Hoselton testified that immediately prior to the accident he was driving on the right hand side of the highway at an estimated speed of from 40 to 50 miles an hour; that his right front wheel struck an unseen soft spot which extended from the shoulder into the highway, the car veered to the right, the wheels on the right hand side crossed the shoulder onto the slope into the ditch but the left hand wheels stayed up on the shoulder, he proceeded in this manner for some distance trying to steer the car gradually back to the highway, the front wheels then struck a rut or obstruction of some sort which was hidden in the grass, the car turned sharply to the left, came up on the highway and rolled over an undetermined number of times. It came to rest in an upright position. Both Hoselton and plaintiff's wife were thrown from the car. Plaintiff's wife received injuries from which she died the same evening. Hoselton testified that immediately upon feeling his right front wheel catch in the soft spot, he took his foot off of the accelerator but did not apply the brakes, because in his judgment, that was the worst thing he could do.
Fortier, who was one of plaintiff's witnesses testified that on the same evening, at about the same time, he was driving from Grand Forks to Drayton. The Hoselton car passed him a few miles north of Grand Forks. Later on he passed the Hoselton car. He drove at a speed of 40 to 45 miles an hour and remained in front of the Hoselton car until he stopped at a tavern near the intersection of Highway 17 with Highway 44. He remained at the tavern for 10 or 15 minutes. Upon leaving the tavern, he drove north upon Highway 44 and was the first person to arrive at the scene of the accident which occurred a short distance north of the intersection of Highways 44 and 17.
Thompson, another of plaintiff's witnesses testified that as he was driving eastward on Highway 17 and approaching the intersection of Highways 17 and 44, he saw 'lights going in a circle' on Highway 44. The time was 8:50 p. m. He knew there had been an accident. He was not more than a quarter of a mile away as the crow flies. He speeded up and reached the scene of the accident after Fortier had reached it.
Thompson and Fortier brought the injured persons to Drayton for treatment. Thompson brought Hoselton in his car and Fortier brought plaintiff's wife, small son and Bergstrom. Neither Fortier or Thompson was asked any questions concerning an odor of alcoholic beverages upon either Hoselton or Bergstrom. The physician who treated Hoselton immediately after the accident testified there was no such odor upon...
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