Ridgway v. Yenny

• Decision Date: 22 November 1944
• Docket Number: 28041,28042.
• Citation: 57 N.E.2d 581,223 Ind. 16
• Parties: RIDGWAY v. YENNY. SAME v. LOMBARDO.
• Court: Indiana Supreme Court

57 N.E.2d 581

223 Ind. 16

RIDGWAY v. YENNY.

SAME v. LOMBARDO.

Nos. 28041, 28042.

Supreme Court of Indiana

November 22, 1944

Appeal from Whitley Circuit Court; Robert R. McNagny Judge.

Appeal from Huntington Circuit Court; Burr Glenn, Judge.

Arthur W. Parry and Merl A. Barnes, both of Fort Wayne, for appellant.

Clarence R. McNabb and Sol Rothberg, both of Fort Wayne (Bloom &amp Bloom, of Columbia City, of counsel), for appellees.

FANSLER Judge.

These are separate actions by the appellees against the appellant for damages because of injuries incurred in an automobile accident. The plaintiffs were guests of the appellant's decedent, and the action is controlled by § 47-1021 Burns' 1940 Replacement, § 11265, Baldwin's Supp.1937, known as the 'guest statute.' Recovery against the estate is authorized by § 2-403, Burns' 1933, Supp., § 50, Baldwin's Supp.1937, Acts 1937, c. 292, p. 1341, which provides for the survival of the action for personal injuries and limits recovery to an amount not exceeding reasonable medical, hospital, or funeral expenses, and the sum of $1,000.

There is but little conflict in the evidence. From that most favorable to the appellees, it appears that Mr. Ridgway, who was about 65 years of age, met the appellees and another woman, all of whom were employees of a restaurant in the City of Fort Wayne, at a basketball game. Mr. Ridgway was a customer of the restaurant and well acquainted with the employees, although he had had no relations with them except in his capacity as a customer and theirs as employees of the restaurant. At the end of the basketball game, which was at approximately 11 o'clock P. M., Mr. Ridgway invited the three restaurant employees to go with him in his car to a restaurant at the edge of the City of Fort Wayne to meet some friends of his, agreeing to return them to the place of their employment. They accepted his invitation, entered his car, and started on the journey. Miss Yenny occupied the front seat with Mr. Ridgway. The other two were in the rear seat. It was a bad night, rain and hail had fallen in the early evening and turned to sleet and then to snow. The streets and highways were slick and covered with sleet and snow. There was a wind blowing and a steady drop in the temperature. The car passed several other cars traveling in the same direction before reaching the city limits, and upon turning onto Maumee Avenue he almost collided with a car parked at the curb. All of the guests cautioned Mr. Ridgway about his driving, suggesting that it was a bad night and he should drive slowly and keep in his driving lane. None of the guests had ever ridden with Mr. Ridgway before, and none of them knew the location of the restaurant to which they were going. All were unfamiliar with the streets over which they traveled and with State Highway 30 on which they traveled outside the city limits. Mr. Ridgway increased his speed upon leaving the city limits and began to drive in and out of the three lanes of traffic on the highway. The car skidded once or twice, and they again asked him to slow down and to be careful and watch other cars. Frequently he headed diagonally across the road, and Miss Yenny grabbed the steering wheel on one occasion and straightened the car. He then stopped the car, with the right wheels on the berm and the left wheels on the pavement, and while thus stopped the guests remonstrated with him about his speed and manner of driving. He started the car again and drove faster than before, again driving in and out of the three lanes of traffic. The guests again protested and cautioned him about oncoming cars and his speed and the danger of skidding on the icy pavement. He again headed the car off the road, and at the suggestion of one of the guests in the back seat, Miss Yenny straightened out the car as he stopped it. Ice and sleet had now formed on the windshield and the windows had become cloudy. Mr. Lombardo got out and endeavored to clean the windshield, but was not successful, and it was suggested that they leave the car and go to a place where they thought they saw some lights and call a cab. Miss Salyers suggested that Mr. Lombardo drive, but he said he did not have an Indiana driver's license. All of them told Mr. Ridgway that he had no right to jeopardize their lives and that they wanted to leave the car and call a cab. Mr. Ridgway did not agree. He said that it was no use to walk over where the lights were as no one was there. He told Mr. Lombardo to get in the car, that he did not want any back-seat driving, and that he could take care of the car himself, that there was only a little way to go and he would get them there safely. While the guests were yet protesting he put the car in motion and was gone. He began to drive even faster in and out of the lanes of traffic. He passed a 'slow' sign and the guests called his attention to it. He paid no heed and increased his speed. After passing the crest of the hill his speed was again accelerated by the down grade. As they came to a left curve he drove far to the left of the lane for oncoming cars and almost sidewiped a truck. After passing this truck at between 35 and 40 miles an hour, the car continued in the lane of traffic and collided head-on with a heavy tractor and semi-trailer. Mr. Ridgway was killed and the guests seriously injured in the collision.

The actions are based upon a charge of wanton and wilful misconduct on the part of the driver.

Error is assigned upon the overruling of the motions for a new trial, which question the sufficiency of the evidence.

Under proper instructions the jury concluded that the driver was guilty of wanton and wilful misconduct, and it cannot be said that the evidence is insufficient to support that conclusion. Bedwell v. De Bolt, 1943, 221 Ind. 600, 50 N.E.2d 875.

It is contended that the evidence discloses that the guests assumed the risk, or, as it is sometimes said, incurred the risk. In so far as the facts at bar require, the doctrine referred to may be stated as follows: 'One who knows of a danger arising from the act or omission of another and understands the risk therefrom, and voluntarily exposes himself to it, is precluded from recovering for an injury which results from the exposure.' White, etc., v. McVicker, 1933 216 Iowa 90, 93, 246 N.W. 385, 386; Pierce v. Clemens, 1943, 113 Ind.App. 65, 46 N.E.2d 836; Edwards, Adm'r, v. Kirk, 1939, 227 Iowa 684, 288 N.W. 875. The incurring of the risk must be really voluntary. If the continued exposure to a known risk of injury is due to a lack of reasonable opportunity to escape after the danger is appreciated, or if continuance of exposure to the danger is the...