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: No. 6156.,6156.
• Parties: SCHWAGER v. ANDERSON. ANDERSON v. SAME.

63 N.D. 579

249 N.W. 305

SCHWAGER

v.ANDERSON.

ANDERSON

v.SAME.

No. 6156.

Supreme Court of North Dakota.

June 24, 1933.

Syllabus by the Court.

1. Under chapter 184, Session Laws 1931, any person who accepts a ride in any vehicle without giving compensation therefor is a guest and has no right of recovery against the owner or driver or person responsible for the operation of such vehicle, except for an injury proximately resulting from the intoxication, willful misconduct, or gross negligence of such owner, driver, or person responsible for the operation of such vehicle, and the burden is upon the plaintiff to establish that such intoxication, willful misconduct, or gross negligence was the proximate cause of such injury.

2. To constitute gross negligence, facts lifting the automobile owner's fault above ordinary negligence must be alleged and proven.

3. In the instant case, the record shows, at most, a failure to exercise the care of a reasonably prudent person, for which there can be no recovery by a guest.

Appeal from District Court, Grand Forks County; M. J. Englert, Judge.

Actions by Annie Schwager and Thressa Anderson against Nick Anderson. The actions were consolidated and tried as one action on the same evidence. From an order granting a new trial in each case, the plaintiffs appeal.

Judgment reversed and dismissed.Bangs, Hamilton & Bangs, of Grand Forks, for appellants.

George A. Bangs, of Grand Forks, for respondent.

BURKE, Judge.

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, N. D., 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, N. D. 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, N. D., 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 willful 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, willful 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. * * * § 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. * * * § 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, willful 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 fast. I could not tell you how fast, I was not looking at the speedometer, I was looking at the road. I was going about 40 or 45 miles an hour. I blew the horn about ten rods behind the truck and the car kind of pulled out towards the center of the road, and I switched my car around quick and shoved off in the ditch, with that speed. That's all there was to it, and that's all I can tell you.

Q. Did you run into the ditch intentionally? A. Well, I guess not. I never did. * * * It was a clear sunshiny day. There might have been some dust, but not to bother.”

On cross-examination he testified:

“Q. And did the driver of the truck from your view-point, show any indication that he heard that horn? A. No.

Q. Your car came on up to the truck, and you intended to drive by on the south side? A. Yes.

Q. * * * As you came up to that truck, it seemed to you that the truck turned a little to the left? A. He did.

Q. As you looked at the space, you figured that there was room for you to go on by the truck? A. Yes.

Q. You turned your car, intending to turn your car just to miss the truck? A. Yes.

Q. And turned the wheel too far, and ran into the ditch, is that it? A. That's the way it went.”

There was no error in granting a motion for new trial, but respondent contends that as a matter of law there is no gross negligence upon the part of the defendant, and his motion for judgment notwithstanding the verdict should have been granted.

[1] The defendant had a new de luxe four-door Ford car equipped with four-wheel brakes, a loud sounding horn, and in good running condition. He had been driving cars for sixteen or seventeen years, mostly Fords. He was familiar with the road, having traversed it with the two plaintiffs about twice a year, visiting the brother and brother-in-law at Hampden, N. D. The road was graded and gravelled, and there was no other traffic or obstruction at the time. The record shows a very strong affection between plaintiffs and their brother and the defendant. Section 7282, Compiled Laws 1913, defines gross negligence as the want of slight care and diligence.

In the case of Farmers' Mercantile Company v. Northern Pacific Railway Company, 27 N. D. 302, at page 310, 146 N. W. 550, 552, this court 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. It is an omission of duty which is akin to fraud. It is the absence of even slight care.”

In Massachusetts a guest cannot recover for an injury except in case it is the proximate result of gross negligence. In the case of Altman v. Aronson, 231 Mass. 588, at page 592, 121 N. E. 505, 506, 4 A. L. R. 1185, the court ...