Ragland v. Snotzmeier

• Decision Date: 09 January 1933
• Docket Number: 4-2802
• Citation: 55 S.W.2d 923,186 Ark. 778
• Parties: RAGLAND v. SNOTZMEIER
• Court: Arkansas Supreme Court

55 S.W.2d 923

186 Ark. 778

RAGLAND v. SNOTZMEIER

4-2802

Supreme Court of Arkansas

January 9, 1933

Appeal from Arkansas Circuit Court, Northern District; W. J Waggoner, Judge; affirmed.

Judgments affirmed.

M. F Elms and W. A. Leach, for appellant.

A. G Meehan and John W. Moncrief, for appellee.

OPINION

MEHAFFY, J.

The appellant, about three o'clock A. M. on the 26th of August, 1931, left Stuttgart, Arkansas, in an automobile for St. Louis, Missouri. The appellant was the driver of the car, and the appellees were his invited guests.

H. A. Hoover occupied the rear seat, and William Snotzmeier rode in front with the driver.

Between Brinkley and Wheatley, about 50 miles from Stuttgart, in attempting to pass a truck parked on the side of the highway, the car in which appellant and appellees were riding was turned over, injuring the parties in the car.

From a point about five miles west of Brinkley, to the place of the accident and beyond, is a concrete surfaced road, and from Brinkley to the place of the accident the road is straight. The accident occurred about four o'clock in the morning.

Each of the appellees filed separate suits against the appellant, seeking to recover damages for the injuries sustained. The cases were consolidated and tried as one case.

The appellees alleged that appellant was driving at a high rate of speed, and that this excessive rate of speed continued for approximately four miles beyond Brinkley; that, while continuing this high rate of speed, appellant undertook to pass another vehicle on the road, but, on account of the rate of speed at which he was traveling, or on account of the careless and negligent manner in which he was driving, appellant's car struck against the car which appellant tried to pass. It was also alleged that all of the occupants of the car were made unconscious as a result of the accident, and that appellant's car was traveling at such an excessive speed, and turned over with such force, that it was practically destroyed. The injuries received by appellees were described in their complaints, and it was alleged that the appellees suffered great pain, and would continue to suffer. Hoover prayed judgment for $ 4,736 and Snotzmeier for $ 10,000.95.

There is very little conflict in the evidence. The appellant himself did not testify.

The trial resulted in a verdict of $ 2,500 for Hoover, and $ 5,000 for Snotzmeier, and judgment was entered accordingly. Appellant filed a motion for a new trial, which was overruled, exceptions saved, and the case is here on appeal.

The undisputed evidence shows that appellant was driving his car at a very rapid rate of speed at the time and some time prior to the time of the accident.

It is not seriously contended that appellant was not guilty of negligence, but the appellant earnestly insists that the appellees were guilty of contributory negligence, and therefore not entitled to recover. He calls attention first to the case of Carter v. Brown, 136 Ark. 23, 206 S.W. 71. Appellant quotes from that case as follows: "It is the duty of the guest to exercise ordinary care for his or her safety; and a failure to exercise such care, which contributes to the injury or might have resulted in avoiding the danger and resultant injury, will constitute contributory negligence." The court, however, also said: "It was also an issue for the jury as to whether the appellant was guilty of contributory negligence. The court erred in not submitting these issues to the jury."

Negligence and contributory negligence are questions of fact to be submitted to and determined by the jury, where there is any evidence tending to show negligence or contributory negligence. The question of the contributory negligence of the appellees was submitted to the jury at the request of the appellant.

Negligence is the failure to exercise such care as a person of ordinary prudence would exercise under the circumstances, and whether one has exercised such care is a question for the jury.

Appellant calls attention to many authorities in support of his contention that it is the duty of an invited guest to exercise ordinary care to protect himself from injury, to caution the driver of the danger, protest against it, and to do what a reasonable, prudent person would do under the circumstances for his own safety. If he fails to exercise such care, and his failure contributes in any degree to produce the injury, he cannot recover. This court has many times announced this doctrine, and it is supported by the great weight of authority.

In determining the question of contributory negligence, it is proper to consider all the circumstances and evidence in the case, the condition of the road, appellees' knowledge of the ability and fitness of the driver, the speed of the car, the character and cause of the accident, and all the circumstances in the case.

Mr. Conrey testified that the car had turned over two or three times, and, after it turned over the last time, had skidded for some distance. The car was almost demolished. The wrecked car had apparently "sideswiped" the truck; had run up on the pavement and turned over about 120 feet beyond the truck. The car was badly wrecked, and witness testified that he had to practically rebuild it.

Wm. Snotzmeier testified that he told the driver he was going too fast, and the driver told him not to worry, that he would watch out. Snotzmeier then testified that he dozed off to sleep, and the next thing he knew he was in the hospital. Snotzmeier was riding in the front seat with the driver.

Hoover testified that the car was being driven at a high rate of speed, about 60 miles an hour. He heard Snotzmeier tell Ragland not to be in such a hurry, or something of the sort, and Ragland said that he would watch out and be careful.

Statements made by both Snotzmeier and Hoover were introduced in evidence. It will be seen from the evidence that the road was a concrete surface, straight, and the accident occurred about four o'clock in the morning, when there was very little travel. Snotzmeier testified that he cautioned the driver, and the driver said that he would be careful, and watch out. The question therefore of contributory negligence of appellees was for the jury.

"Unless the facts are manifest, and the inference to be drawn therefrom clear beyond peradventure, the question whether the guest of an automobile driver, having no control over him was...