Rubbelke v. Jacobsen

• Citation: 66 N.D. 720,268 N.W. 675
• Decision Date: 20 August 1936
• Docket Number: No. 6414.,6414.
• Parties: RUBBELKE v. JACOBSEN.
• Court: United States State Supreme Court of North Dakota

66 N.D. 720

268 N.W. 675

RUBBELKE

v.JACOBSEN.

No. 6414.

Supreme Court of North Dakota.

July 29, 1936.

Rehearing Denied Aug. 20, 1936.

Syllabus by the Court.

1. Under the provisions of chapter 184 of the Session Laws of North Dakota for 1931, a guest in a vehicle moving upon the public highways of this state has no right of recovery against the owner, driver, or person responsible for the operat on of such vehicle forinjuries sustained while riding as such guest, unless they proximately result from the intoxication, willful misconduct, or gross negligence of the owner, driver, or person responsible for the operation of such vehicle.

2. In determining whether gross negligence exists, every act or omission entering into a particular happening must be considered in connection with all other circumstances.

3. Where a driver of a motor vehicle proceeding at a high rate of speed voluntarily and deliberately turns his attention elsewhere than to the highway upon which he is driving, and as a proximate result of his inattention, even though momentary, an accident occurs, the question of his gross negligence is for the jury.

4. Evidence examined, and it is held that under the circumstances here presented it is for the jury, and not for this court, to say whether the defendant was guilty of gross negligence.

5. Record examined, and it is held that it was not error to refuse to give a requested instruction on gross negligence when the court did give a sufficient instruction which was based upon the statutory definition of gross negligence contained in section 7283 of the Compiled Laws.

6. Under the evidence presented in this case, it is held that a verdict of $3,500 is not so grossly excessive as to necessarily indicate passion and prejudice of the jury.

Appeal from District Court, Ward County; John C. Lowe, Judge.

Action by Louis Rubbelke against Bertel Jacobsen. Judgment for plaintiff, and defendant appeals.

Affirmed.

John H. Lewis, of Minot, for appellant.

Halvor L. Halvorson and Sinkler & Brekke, all of Minot (Leon W. Halvorson, of Minot, of counsel), for respondent.

MORRIS, Judge.

This is an appeal from a judgment rendered against the defendant in the district court of Ward county upon a verdict of the jury and from an order denying a motion for judgment notwithstanding the verdict or for a new trial. The plaintiff was injured in an accident which occurred on state highway No. 3 between the towns of Hurdsfield and Harvey about 4 o'clock p. m. September 3, 1934. He was riding as a guest in the back seat of an automobile which belonged to, and was being driven by, the defendant. At the time the accident occurred, the car was traveling at a speed of 45 to 55 miles per hour. The highway was straight and had a graveled surface in good condition. The plaintiff was riding alone in the back seat, and one Kranz was riding with the defendant in the front seat. The defendant, who was driving, turned around to his right to talk to the plaintiff, who sat directly behind him. He turned sufficiently to look, and did look directly, at the plaintiff. While his attention was so directed to the occupant of the back seat, the car ran off the road to the right and upset in a shallow ditch. The plaintiff was thrown through the top of the car and was rendered unconscious for the time. He received injuries to his head, shoulders, back, and right leg. The car started to go off the road as soon as the driver turned his head. After it started, it took the car less than a second to run off the highway.

There is some testimony in the record that after the accident the defendant found nails in two tires. In one of these tires the inner tube had blown out. Despite this testimony, there is ample evidence to sustain the plaintiff's contention that the accident was caused by the defendant's inattention to his duties as driver and that while directing his attention to the guest in the back seat he permitted the car to run off the road.

[1] The plaintiff was a guest of the defendant within the meaning of chapter 184 of the Session Laws of North Dakota 1931, and consequently cannot recover damages unless his injury is one “proximately resulting from the intoxication, wilful misconduct, or gross negligence” (section 2) of his host. It is conceded that the defendant was not intoxicated, and that the accident was not the result of his willful misconduct. The defendant contends that as a matter of law his actions, as shown by the testimony, do not constitute gross negligence.

In discussing gross negligence, this court has said: “‘Gross negligence’ is, to all intents and purposes, no care at all. It is the omission of the care which even the most inattentive and thoughtless 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.” Farmers' Mercantile Company v. Northern Pacific Railway Company, 27 N.D. 302, 146 N.W. 550;Schwager v. Anderson, 63 N.D. 579, 249 N.W. 305;Erickson v. Foley, 65 N.D. 737, 262 N.W. 177.

In Shaw v. Moore, 104 Vt. 529, 162 A. 373, 374, 86 A.L.R. 1139, the court said: “Gross negligence is equivalent to the failure to exercise even a slight degree of care.” The Supreme Court of California in Krause v. Rarity, 210 Cal. 644, 293 P. 62, 66, 77 A.L.R. 1327, discussing “gross negligence” as used in the guest statute in that state, said: “In many jurisdictions the division of negligence into degrees is not countenanced (20 R.C.L. 21); the concept being that such phrases as ‘gross negligence’ and ‘slight negligence’ are misnomers. In this state the degrees of negligence have been frequently recognized. The term ‘gross negligence’ has been defined as ‘the want of slight diligence,’ as ‘an entire failure to exercise care, or the exercise of so slight a degree of care as to justify the belief that there was an indifference to the things and welfare of others,’ and as ‘that want of care which would raise a presumption of the conscious indifference to consequences.’ 19 Cal.Jur. p. 554; Coit v. Western Union Tel. Co., 130 Cal. 657, 63 P. 83, 53 L.R.A. 678, 80 Am.St.Rep. 153.”

The above case was decided in 1930. In 1931 the North Dakota Legislature adopted a guest statute identical in wording with that of the California statute involved in the above case (St.Cal.1929, p. 1580, § 141 3/4). Since that time the California statute has been amended (St.Cal.1931, p. 1693) by omitting the words “gross negligence.” Our statute, however, remains unchanged.

Many states have guest statutes, but most of them are either different in wording from ours or are construed by the courts of states in which different rules of negligence apply than those in North Dakota.

In Iowa the guest statute (Code 1935, § 5026-b 1) uses the term “reckless operation.” The Connecticut statute (Gen.St.1930, § 1628) requires proof of heedless or reckless disregard of the rights of others. Liability in Michigan (Comp.Laws 1929, § 4648) depends upon proof of “gross negligence or wilful or wanton misconduct” on the part of the host. In Vermont (P.L. 5113) an injured guest can recover only upon showing “gross or wilful negligence.” Gross negligence has been defined in Vermont as the failure to exercise even slight care, amounting to indifference to legal duty, but it may fall short of such reckless disregard of consequences as to be equivalent to a willful wrong. Shaw v. Moore, supra.

[2] In determining whether or not gross negligence exists, “every act or omission entering into a particular happening must be considered in connection with all the other circumstances before the whole can properly be held to be an instance of gross negligence.” Meeney v. Doyle, 276 Mass. 218, 177 N.E. 6, 7. In a number of recent cases we find that acts similar to those involved in this case were held to constitute gross negligence. Among them are the following: Richards v. Richards, 86 N.H. 273, 166 A. 823, in which the defendant drove his automobile off the road while gazing to the left. Horneman v. Brown, 286 Mass. 65, 190 N.E. 735, in which the defendant stooped over to light a cigarette and took his eyes off the road while driving at 35 miles per hour. Dow v. Lipsitz, 283 Mass. 132, 185 N.E. 921, in which the defendant leaned over to adjust the lights while traveling at 30 to 35 miles per hour and drove off the road. In Crowley v. Fisher, 284 Mass. 205, 187 N.E. 608, the defendant lost control of his car while watching an airplane. In all of these cases it appears that the plaintiff was injured in an accident which was a proximate result of the defendant's inattention to the road on which he was driving. In the above cases the period of inattention was brief, usually...