Peters v. Hoisington

Citation37 N.W.2d 410,72 S.D. 542
Decision Date23 April 1949
Docket Number8994.
PartiesPETERS v. HOISINGTON et al.
CourtSupreme Court of South Dakota

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Davenport, Evans & Hurwitz and Deming Smith all of Sioux Falls, for defendant and appellant.

Claude A. Hamilton and Thomas J. Barron, both of Sioux Falls, for plaintiff and respondent.


Plaintiff brought this action to recover damages for personal injuries sustained in an automobile accident. Harley Hoisington driver of the automobile, and Harley H. Hoisington, its owner, are named as defendants. At the conclusion of all the testimony defendants moved separately for directed verdicts. The motion of the owner of the automobile was granted. The cause was submitted to the jury as against the other defendant and a verdict in the sum of $7,375 was returned in favor of the plaintiff. Motion for judgment n. o. v. was denied. Judgment was rendered on the verdict and this appeal followed.

As grounds for reversal appellant urges that the evidence is insufficient to support the verdict in that plaintiff was guilty of contributory negligence that proximately contributed to his injuries; that appellant was not liable for ordinary negligence because it conclusively appears from the evidence that plaintiff was transported in appellant's car as a guest; that counsel for respondent was guilty of prejudicial misconduct; that the trial court made prejudicial comment during course of argument to the jury; that the court erred in receiving over objection expert testimony given by a witness not appointed by the court and without reasonable notice to the appellant; and that the court erred in giving certain instructions and in refusing requested instructions.

When the sufficiency of the evidence to support a verdict is challenged the court must view the evidence in the light most favorable to the successful party, that is, every controverted fact must be resolved in his favor and he should have the benefit of every reasonable inference that can be drawn therefrom. The statement of the evidence will be made in the light of this basic rule.

The respondent, Ben Peters, resided in the city of Sioux Falls and for several years had been employed by the Great Northern Railway Company as a boiler-maker and at times as a fireman. On Sunday, February 16, 1947, at about nine o'clock in the evening plaintiff, dressed in his work clothes, went to a tavern known as Henry's Place. Respondent asserts that he had not seen appellant at any time during that day prior to eleven o'clock in the evening when the latter came into Henry's Place and asked him to fix the lights on appellant's car which had been 'flickering' or 'cutting out.' Respondent had installed a battery in the Hoisington car two or three days previously and knew that there was something wrong with the wiring.

Respondent called the father, Harley H. Hoisington, as an adverse witness under the statute. He testified that he said to his son, the appellant, when he asked to use the car to go to his uncle's place near Wentworth: 'You can't drive it up there with the lights that way, you know the lights are not working on it.' He further testified: 'I said if you get them fixed all right, but don't go out on the road with them that way because it was quite a ways up there and I knew the conditions of the road at that time.' He asserted that there were no indications at that time that his son had been drinking.

After checking the battery cables on the car, plaintiff and appellant drove from Henry's place to Pat's Tavern where, plaintiff testified, he had a drink of whiskey mixed with '7-Up' and appellant had two such drinks. Appellant was not certain about having more than two drinks at this place and whether the bottle from which the whisky was poured was a pint or half pint. From this place the parties drove to the V. F. W. Club. Appellant went inside while respondent sat in the car with the motor running. Appellant testified that in this place he had a 'couple of drinks or more' with friends. Appellant was in the V. F. W. Club about half an hour and then he and respondent drove west on Tenth Street leading directly away and not toward the home of respondent and turned south on Grant Avenue where the car stalled. It started when pushed by a passing car. At the time of the accident which occurred at about 1:30 A.M. they were driving west on highway 16 at a rate of 35 to 40 miles per hour. Plaintiff warned defendant about the slippery condition of the highway and said to him: 'Take it easy, slow down a little.' When the car left the highway and overturned plaintiff had his head up against the dash attempting to check the wiring underneath the dash. Plaintiff suffered a dislocation and fracture of the cervical vertebrae.

Fred Baker, deputy sheriff, testified that when he arrived at the scene of the accident respondent was being removed from the overturned car to an ambulance and that appellant was intoxicated and was placed under arrest. Appellant pleaded guilty in municipal court to a charge of driving while under the influence of intoxicating liquor.

We will first consider the question whether the trial court erred in refusing to rule that plaintiff as a matter of law was guilty of contributory negligence in riding with the appellant.

Contributory negligence is a question of law only when the court is impelled to say that from the facts reasonable men can draw but one conclusion pointing unerringly to the negligence of the plaintiff contributing to his injury. Jensen v. Juul, 66 S.D. 1, 278 N.W. 6, 115 A.L.R. 1280. In other words, where the minds of reasonable men might differ, it is for the jury to determine disputed questions of fact as to contributory negligence and it is the province of this court to determine whether there is sufficient evidence in the record to sustain the finding of the jury.

Contributory negligence in this case can only be predicated upon the fact that plaintiff knew or should have known that appellant was under the influence of intoxciating liquor. In Miller v. Stevens, 63 S.D. 10, 256 N.W. 152, cited by appellant, it is said with reference to a guest and host situation that plaintiff knowingly acquiescing in maintenance of a speed of 50 miles per hour by her host assumed the risk incident thereto. In Hall v. Hall, 63 S.D. 343, 258 N.W. 491, 492, also cited by appellant, this court said: '* * * that a nonpaying passenger, when he enters an automobile, should and does assume the risk of any injury resulting from the lack of proficiency of the driver, at least to the extent that the degree of proficiency is known to the nonpaying passenger.' Under the circumstances in the instant case, it is argued that it clearly appeared that prior to the accident a danger existed entirely inconsistent with the safety of the plaintiff. It does not follow from evidence that a person had been drinking and thereafter drives his car that as a matter of law he was driving while under the influence of intoxicating liquor. It is the knowledge of the passenger that intoxication exists that places him in the category of one who is deemed to take his chances of an accident and resulting injury. We cannot say as a matter of law that plaintiff knew, or should have known, that appellant was under the influence of intoxicating liquor and was contributorily negligent in continuing to ride with him. This distinguishes the instant case from the cases in other jurisdictions cited by counsel. They include Schubring v. Weggen, 234 Wis. 517, 291 N.W. 788, wherein the court held that the driver had become obviously drunk. And in Hicks v. Herbert, 173 Tenn. 1, 113 S.W.2d 1197, 1199, cited by appellant, the court said: 'Plaintiff was in a position to see just as much of defendant and of defendant's condition as were the other witnesses testifying in the case. Defendant was in such condition as to make it apparent to all the other witnesses that he was drunk and in no fix to drive an automobile. We do not see how any reasonable person could have reached a different conclusion under the circumstances. * * * Such being the plight of the record, the trial judge did not err in holding as a matter of law that plaintiff was guilty of contributory negligence, barring his recovery.' There was no testimony in the instant case that the conduct of appellant before the accident obviously indicated intoxication and from which it can be said as a matter of law that plaintiff knew or should have known that appellant was under the influence of intoxicating liquor. We are of the opinion that this issue was properly submitted to the jury.

Appellant also contends that plaintiff was a guest within the meaning of the guest statute, SDC 44.0362, and that the court should have so instructed the jury. The statute applies to a person 'transported by the owner or operator of a motor vehicle as his guest without compensation for such transportation.' In Scotvold v. Scotvold, 68 S.D. 53, 298 N.W. 266, 271, it was said that this statute does not apply to 'passengers who have become such for the substantial benefit of the owner or operator.' See also Schiltz v Picton, 66 S.D. 301, 282 N.W. 519; Forsling v. Mickelson, 66 S.D. 366, 283 N.W. 169; McMahon v. De Kraay, 70 S.D. 180, 16 N.W.2d 308. There is evidence that plaintiff made the trip at appellant's request, not for reasons of his own pleasure or good fellowship as counsel contend, but in order to render a requested service for appellant. The jury was instructed as to whether plaintiff was a guest or...

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