Schwager v. Anderson

• Court: North Dakota Supreme Court
• Writing for the Court: BURKE
• Citation: Schwager v. Anderson, 63 N.D. 579, 249 N.W. 305 (N.D. 1933)
• Decision Date: 24 June 1933
• Docket Number: 6156

249 N.W. 305

63 N.D. 579

ANNIE SCHWAGER, Appellant, v. NICK ANDERSON, Respondent. and THRESSA ANDERSON, Appellant, v. NICK ANDERSON, Respondent

No. 6156

Supreme Court of North Dakota

June 24, 1933

Appeal from the District Court of Grand Forks County Englert J.

Reversed and dismissed.

Bangs Hamilton & Bangs, for appellant.

The term guest (automobile) is defined as being a person who accepts a ride in an automobile without giving compensation therefor. Kastel v. Stieber, 8 P.2d 474; Sullivan v. Richardson, 6 P.2d 576; Smith v Fall River Joint School Dist. 5 P.2d 930; Brookhart v. Greenlease-Lied Motor Co. 244 N.W. 721; Puckett v. Pailthorpe, 223 N.W. 254; Smith v. La Flar, 2 P.2d 18; Coconower v. Stoddard, 182 N.E. 468; Silver v. Silver, 65 L.R.A. 943; Kruy v. Smith, 144 A. 304; Leete v. Griswold Post No. 79, 158 A. 919.

It is generally held that contributory negligence on the part of the husband in driving a motor vehicle cannot be imputed to his wife who is driving with him, unless they are engaged in an enterprise giving the wife power and duty to direct or assist in the operation and management of the vehicle, or unless she participates in her husband's negligence in the operation of the vehicle. 42 C.J. 1180; Bolton v. Wells, 58 N.D. 286, 225 N.W. 791; Collins v. Anderson, 260 P. 1089; Lawrence v. Troy, 289 P. 491.

Where one member of a joint enterprise sues another, the doctrine of imputed negligence does not apply. O'Brien v. Woldson, 270 P. 304.

A guest passenger does not have to assume responsibility for the management of the car. He is not required to be constantly on the alert to discover dangers which the driver may perchance not discover. Burgess v. Crafts (Minn.) 238 N.W. 798; Lawrence v. Troy, 289 P. 491.

Gross negligence falls short of being such reckless disregard of probable consequences as is equivalent to a wilful and intentional wrong. Sorrel v. White, 153 A. 359; Holdhusen v. Schaible, 244 N.W. 392; Meighan v. Baker, 6 P.2d 1015; Kastel v. Stieber, 8 P.2d 474; Malone v. Clemow, 295 P. 70; Coner v. Chittendent, 163 A. 472.

The questions and proximate cause become a question of law only when the evidence is such that different minds cannot reasonably draw different conclusions either as to the facts or as to the deductions from the facts. State v. Yellow Cab Co. 62 N.D. 733, 245 N.W. 382.

George A. Bangs, for respondent.

"An automobile guest is a person received and entertained in the automobile of another." Chanson v. Morgan's La. T.R. & S.S. Co. (La.) 136 So. 647; Smiddy v. O'Neil (Mass.) 177 N.E. 809; Jacobson v. Stone (Mass.) 178 N.E. 636.

It is immaterial whether or not the operator of the vehicle and the passenger are engaged in a joint enterprise or adventure or have a common purpose. Smith v. La Flar (Or.) 2 P.2d 18; Kaplan v. Kaplan (Iowa) 239 N.W. 682; Phillips v. Briggs (Iowa) 245 N.W. 720; Johnson v. Ostrom (Cal.) 16 P.2d 749.

One in great peril, when immediate action is necessary to avoid it, is not required to exercise all that presence of mind and carefulness which are justly required of a careful and prudent man under ordinary circumstances. Kearney v. Castellotti, 55 Cal.App. 541, 203 P. 1029; Massie v. Barker, 224 Mass. 420, 113 N.E. 199; Allwein v. Asbury Truck Co. 116 Cal.App. 736, 3 P.2d 320; Wiley v. Cole, 67 Cal.App. 762, 228 P. 550; Goebel v. Vaught (Or.) 269 P. 493; 42 C.J. 592.

Gross negligence is an omission of duty which is akin to fraud. It is the absence of even slight care. Farmers' Mercantile Co. v. N.P.R. Co. 27 N.D. 302; Craig v. McAtee (Wash.) 295 P. 146; Murphy v. Hawthorne, 117 Or. 319, 244 P. 79.

The operator of a motor vehicle is not bound to anticipate negligence of those in charge of other vehicles. 42 C.J. 844.

An automobilist who is himself observing the regulations of traffic on the highway has the right of the use of the highway which is superior to that of one who is violating regulations. 42 C.J. 901; 1 Blashfield, Cyc. Auto. Law, 289.

Burke, J. Nuessle, Ch. J., and Birdzell, Burr and Christianson, JJ., concur.

OPINION

BURKE

On the 14th day of October, 1931, the plaintiff, Thressa Anderson, and the defendant, Nick Anderson, her husband, together with Annie Schwager, a sister of the plaintiff, Mrs. Anderson, left Grand Forks in the defendant's automobile to visit a brother of Mrs. Anderson and Mrs. Schwager at Hampden, North Dakota, who was reported to be seriously ill. Hampden is about 136 miles west and a little north of Grand Forks, in the northern part of Ramsey county, North Dakota. En route and while on the regular highway, in attempting to pass a truck, there was an accident, in which Mrs. Anderson and Mrs. Schwager were injured and both brought actions against the defendant, Nick Anderson, the owner of the car and who was driving at the time of the accident.

At the close of the plaintiffs' testimony in each case the defendant moved for a directed verdict which was overruled. At the close of all the testimony the defendant again moved for a directed verdict in each case, which was overruled and the jury, having returned verdicts for the plaintiff in each case, the defendant moved for judgment notwithstanding the verdict, or for a new trial, and from the order granting a new trial in each case the plaintiffs appeal.

The two actions were consolidated and tried as one action on the same evidence. The pleadings were the same in each case. The plaintiffs alleged, in substance, that on the 14th day of October, 1931, the plaintiff was riding as an invited passenger in the defendant's automobile and that the defendant while driving said automobile on the highway near Edmore, North Dakota, while the plaintiff was a passenger, was so grossly negligent and careless in the operation and driving of said automobile that he drove said automobile into the ditch and the plaintiff was seriously injured and damaged, due to the gross negligence and carelessness and wilful misconduct of the defendant in the driving and operation of said automobile at an excessive rate of speed without due regard for the safety and protection of the lives of others.

The defendant alleges, as a defense, that at the time of receiving the injury complained of the plaintiff was riding in the vehicle without giving compensation therefor; that she was a guest of the defendant and that the vehicle was moving on the public highway of the state of North Dakota and that such injury was not proximately caused from the intoxication, wilful misconduct, or gross negligence of the defendant and that under the provisions of chapter 184 of the North Dakota Session Laws for the year 1931 there is no liability upon this defendant for plaintiff's injuries.

The trial judge, in his memorandum opinion, states that at the time the case was submitted to the jury he was of the opinion that chapter 184, Session Laws, 1931, was not applicable to the facts in either case and that he did not take that law into consideration in passing upon the defendant's motion for an instructed verdict, or in his instructions to the jury; but upon consideration of the defendant's motion for judgment notwithstanding the verdict, or for a new trial, he was of the opinion that it did apply and granted the motion for a new trial.

Section 1 of chapter 184 of the Laws of 1931, provides that "Any person who as a guest accepts a ride in any vehicle, moving upon any of the public highways of the State of North Dakota, and while so riding as such guest receives or sustains an injury, shall have no right of recovery against the owner or driver or person responsible for the operation of such vehicle. . . . Section 2. Nothing in this Act contained shall be construed as relieving the owner or driver or person responsible for the operation of a vehicle from liability for injury to or death of such guest proximately resulting from the intoxication, wilful misconduct, or gross negligence of such owner, driver or person responsible for the operation of such vehicle; . . . Section 3. For the purpose of this Act the term 'guest' is hereby defined as being a person who accepts a ride in any vehicle without giving compensation therefor."

In the instant case the two plaintiffs were riding in the defendant's car without giving compensation therefor and were, therefore, guests under the statute, and could only recover for an injury received while so riding as a guest in defendant's car from injuries proximately resulting from the intoxication, wilful misconduct or gross negligence of such owner.

The claim is that the injuries resulted from the gross negligence of such owner in driving the car.

There is no conflict in the testimony. The plaintiffs were sitting in the back seat of the car talking to each other and paid very little attention to the road or to the progress of the car. Mrs. Anderson testified: "We weren't paying much attention to the driving, we were talking. There was a truck ahead of us, I remember that, . . . and all I knew was when I said we were going in the ditch, I noticed that; and that's as far as I can tell what happened. I saw the truck just a short time before we went to pass it. I could not tell you whether we passed it, or not. I have been riding in automobiles ever since we owned one, about 16 years. I know when the car is running rapidly or slowly. I should judge it was about forty or forty-five miles, between them two."

The defendant testified that the car was equipped with a horn, a good noisy one. "You can make all kinds of noise with the new horns. It is a good loud horn. The truck was upon its proper side of the road, on the right hand side. I pulled up and I saw he was kind of pulling in on the road, and I probably could have passed him, but the car was running pretty...