Sharp v. Sproat

• Decision Date: 08 July 1922
• Docket Number: 23,868
• Citation: 208 P. 613,111 Kan. 735
• Parties: T. A. SHARP and ETTA SHARP, Appellees, v. DEWEY SPROAT, Appellant
• Court: Kansas Supreme Court

208 P. 613

111 Kan. 735

T. A. SHARP and ETTA SHARP, Appellees, v. DEWEY SPROAT, Appellant

No. 23,868

Supreme Court of Kansas

July 8, 1922

Decided July, 1922.

Appeal from Shawnee district court, division No. 2; GEORGE H WHITCOMB, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. NEGLIGENCE--Automobile Driven at Dangerous Rate of Speed--Duty of Invited Guest to Protest--Contributory Negligence. An invited guest riding in an automobile driven at an excessive and dangerous speed is required to exercise such care as is reasonable and practical to avoid injury to himself, and if he fails to warn the driver, remonstrate with him, or demand that the automobile be stopped so that he may leave it, or take any precaution for his own protection when there is time and opportunity to do so, no recovery can be had for injury sustained by him through the negligent operation of the car.

2. SAME--Instruction Relative to Duty of Invited Guest in Automobile. In such a case the court should instruct the jury as to the duties which the law imposes upon and the care to be exercised by the guest for his own safety. It is not enough to instruct in general terms that he should act with ordinary care for his own safety where a request is made for an instruction as to what constitutes ordinary care on the part of the guest under the circumstances disclosed by the evidence.

3. SAME--Contributory Negligence--Question of Fact. As the automobile was only driven a short distance at a reckless speed before the accident occurred, and there was little time for the guest to observe the danger and protest or take other precautions for his own safety, it became a question of fact for the jury to determine whether there was time and opportunity to do so.

4. SAME--Demurrer to Evidence Properly Overruled. No error was committed in overruling the demurrer to plaintiff's evidence.

Thomas F. Doran, and Clayton E. Kline, both of Topeka, for the appellant.

John W, Newell, and William Wallace, both of Topeka, for the appellees.

Johnston, C. J. Marshall, J., West, J. dissenting.

OPINION

JOHNSTON, C. J.:

T. A. Sharp and Etta Sharp were the parents of Randall Sharp, who was killed in an automobile accident near Silver Lake. He was riding as a passenger in the automobile and the defendant was operating it at the time of the accident. Defendant and three others started from Topeka to attend a baseball game between the colleges of Washburn and St. Marys. Randall Sharp was a student at Washburn and a member of the baseball club. The players, including Sharp, were being conveyed in a truck to St. Marys and the truck had broken down near Silver Lake. When Sproat drove into Silver Lake he was requested to take some of the players to St. Marys. Sharp and one Erickson were taken into the Sproat car. After they left Silver Lake and had gone about one quarter of a mile the automobile was turned over and Sharp was killed. Sproat was driving the automobile at a speed of from forty-five to fifty miles per hour and had been driving at that rate of speed about one quarter of a mile. The two players with two others occupied the back seat of the automobile, and Erickson was holding Sharp on his lap when the accident occurred. The jury found that the speed was from forty-five to fifty miles per hour; that that speed had been maintained for about a quarter of a mile prior to the overturning of the automobile; that neither Sharp nor anyone else in the car protested against the rate of speed or requested the driver to slow up. The jury found in favor of the plaintiff, awarding damages in the sum of $ 4,500.

The principal ground of complaint is the instructions given and refused. The defendant insists that the instruction requested which relates to contributory negligence should have been given. An instruction on the subject of contributory negligence was given as follows:

"It is claimed by the defendant in his answer that the deceased Randall Sharp was guilty of contributory negligence, in not making any protest against the speed at which the car was going, if there was excessive speed, or protest against the manner in which the car was operated, but that the deceased concurred and participated in the negligence of the defendant, if any there was, which the defendant denies. In this connection I will say to you that it was the duty of the deceased Randall Sharp to act with ordinary care under the circumstances, for his own safety, and if he was guilty of negligence which contributed to his injury and death, or if he concurred in the negligence of the defendant, if any, in a way which contributed to his injury, then the plaintiffs in this case can not recover, even though you find the defendant was guilty of negligence, as charged."

The instruction requested, upon the refusal of which error is assigned, reads:

"You are instructed that if you find from the evidence that Randall Sharp was a young man twenty years old, in the possession of all his faculties, and that at the time of the accident complained of he was riding in an automobile driven by the defendant at a dangerously high rate of speed, and that he had been riding in said automobile for a sufficient distance prior to the accident for him to become aware that said automobile was being driven at a high and dangerous rate of speed, and if you further find that Randall Sharp made no protest to the defendant against the high rate of speed of the automobile, and did not request the defendant to stop or slow down the car, then I instruct you that Randall Sharp was guilty of contributory negligence and the plaintiffs cannot recover in this action."

This instruction or one of similar import should have been given. In the one given, the court informed the jury that it was the duty of Sharp to act with ordinary care for his own safety and that if his negligence in that respect contributed to his injury and death, no recovery could be had although the defendant was also found to be guilty of negligence. The duty of a guest and the care to be exercised for his own safety under the circumstances were not stated. Before the jury could determine whether Sharp had exercised due care for his safety it was necessary that they should be informed and understand what duties the law imposes upon an invited guest while riding with a reckless or careless driver. The rules governing the duties of a guest and the precautions to be taken for his own safety differ from those imposed upon the driver or one acting independently. It has been decided that:

"Where one person is riding with another for the mutual pleasure of both, with equal opportunity to see and ability to appreciate the danger, and is in fact looking out for herself but makes no effort to avoid the danger, she is chargeable with the want of care which results in injury." (Bush v. Railroad Co., 62 Kan. 709, syl. P 3, 64 P. 624.)

In speaking of the kind of care which one who is riding with a reckless driver or in an automobile known to be unsafe should exercise, it was said:

"If in starting upon a trip he discovers that the driver is running the car recklessly it may devolve upon him to insist that the driver shall stop the car and allow him to alight or to take...