Sheets v. Pendergrast

• Decision Date: 16 November 1960
• Docket Number: No. 7908,7908
• Parties: Ethel SHEETS, Plaintiff and Respondent, v. Audrey PENDERGRAST and Joe Pendergrast, Defendants and Appellants. Omer SHEETS, Plaintiff and Respondent, v. Audrey PENDERGRAST and Joe Pendergrast, Defendants and Appellants.
• Court: North Dakota Supreme Court

Page 1

106 N.W.2d 1

Ethel SHEETS, Plaintiff and Respondent, v. Audrey PENDERGRAST and Joe Pendergrast, Defendants and Appellants.

Omer SHEETS, Plaintiff and Respondent, v. Audrey PENDERGRAST and Joe Pendergrast, Defendants and Appellants.

No. 7908.

Supreme Court of North Dakota.

Nov. 16, 1960.

Syllabus by the Court.

1. Under the provisions of Chapter 39-15 of the North Dakota Revised Code of 1943, a guest in a vehicle being operated upon the public highways of this State has no right of recovery against the owner or operator of such vehicle for injuries suffered while riding as such guest unless such injuries proximately result from the intoxication, willful misconduct, or gross negligence of the owner or operator of such vehicle.

2. A minor is not held to the same standard of care as an adult, and is required to exercise only such care as is ordinarily exercised by minors of like age, mental capacity, and experience.

3. The standard of conduct required of an individual is the conduct of an ordinarily prudent person of like age, intelligence, and experience.

4. Where facts and circumstances relating to the alleged negligence of a person are such that reasonable men can draw but one conclusion therefrom, the question of negligence becomes a question of law.

5. Where a driver voluntarily, and not on sudden impulse, directs her attention elsewhere than to the highway on which she is driving and, as a proximate result of her inattention, even though momentary, an accident occurs, the question of her gross negligence is for the jury.

6. It is not error for the trial court to refuse to give a requested instruction on gross negligence when the court did give a sufficient instruction based on the statutory definition of 'gross negligence' as found in Chapter 39-15 of the North Dakota Revised Code of 1943.

Conmy, Donahue & Conmy, Bismarck, for defendants and appellants.

Mackoff, Kellogg, Muggli & Kirby, Dickinson, and John A. Amundson, Bowman, for plaintiffs and respondents.

STRUTZ, Judge.

This appeal involves two actions, one commenced by Ethel Sheets for personal injuries she received while riding as a guest in an automobile driven by the defendant Audrey Pendergrast, which automobile is alleged to have been owned and maintained by the defendant Joe Pendergrast as a family car, and the other commenced by Omer Sheets, the father of Ethel Sheets, and brought for hospital, medical, surgical, and other expenses paid by the plaintiff as father of Ethel Sheets who at the time of the accident was a minor but who reached her majority before the trial of these actions.

The two actions were consolidated for purposes of trial, and judgment was recovered by the plaintiff in each action.

After judgment, the defendants moved for judgment notwithstanding the verdict in each case, which motion was denied. Separate appeals were taken, but the cases were again consolidated for the purposes of the brief and argument in this court.

The appeals in each case are from the judgment and from the order denying motion for judgment notwithstanding the verdict and, in the alternative, for a new trial. In the argument in this court, however, counsel for the defendants stated that the defendants were abandoning their appeals from the order denying motion for a new trial and that the appeals were limited to appeals from the judgments and from the orders denying motion for judgment notwithstanding the verdict.

The record discloses that the accident in which Ethel Sheets was injured occurred on a gradual curve on U. S. Highway No. 85, just north of the city of Bowman. The plaintiff Ethel Sheets was riding in the automobile operated by the defendant Audrey Pendergrast, which automobile, as hereinbefore stated, was owned by the defendant Joe Pendergrast and was alleged to be a family car. The record further shows that prior to leaving Bowman, the defendant Audrey Pendergrast had stopped at the postoffice and had picked up some mail, including a letter from a college which she was hoping to enter later in the fall.

There is also testimony on behalf of the plaintiff that, as the plaintiff Ethel Sheets and the defendant Audrey Pendergrast left the city, accompanied by three other girls who were riding in the rear seat, all of the girls were discussing the contents of that letter. It was being read by the girl sitting in the center of the rear seat. Just prior to the accident, as the car was rounding a gradual curve in the highway, the defendant driver turned to look into the back seat as if to say something to the girl reading the letter. While she was so turned, the car went off the paved portion of the road and, in attempting to get it back on the road, she pulled it to the left, across the road, and it rolled over on the left side of the highway. There is also testimony in the record that after the accident the investigating officer found that the car had a flat front tire and that the car was equipped with tubeless tires, which will deflate immediately if torn, even partially, from the rim.

As a result of the accident the plaintiff Ethel Sheets received severe injuries of the spine, resulting in paralysis of her lower extremities which had only partially healed at the time of the trial of these cases.

The jury returned verdicts for $53,000 for the plaintiff Ethel Sheets and $7,092.45 for the plaintiff Omer Sheets.

From the facts established by the record, the plaintiff Ethel Sheets was a guest of the defendant Audrey Pendergrast within the meaning of Chapter 39-15 of the North Dakota Revised Code of 1943. Therefore, she cannot recover for any injuries she may have suffered unless such injuries were proximately caused and were the result of the intoxication, willful misconduct, or gross negligence of the defendant driver. There is no evidence of any intoxication or of any willful misconduct in the record, and defendants contend that, as a matter of law, the evidence was insufficient to establish gross negligence on the part of the defendant Audrey Pendergrast, the driver of the vehicle.

Defendants' counsel points out that the defendant Audrey Pendergrast was, at the time of the accident, seventeen years of age, and that her conduct must be judged by the conduct of high school girls of the same age, under similar circumstances. The defendants argue that the girls were high school youngsters on a pleasure trip to a football game, and that therefore the standard of conduct of an ordinarily prudent adult person would not apply to the defendant driver. The defendants strenuously contend that, judging the facts in this light, the defendant was not guilty of gross negligence as a matter of law.

Defendants contend that the defendant driver acted on sudden impulse, and that therefore her actions are not to be judged by the same standard as if she had acted deliberately, citing several cases. Included in the cases cited by the defendants is Rindge v. Holbrook, 111 Conn. 72, 149 A. 231, where a verdict for the plaintiff was set aside in an action by a guest against the driver where the evidence showed that the accident was due to the fact that defendant took her eyes from the road when distracted by a bee which had alighted on her wrist. In Black v. Neill, 134 Neb. 764, 279 N.W. 471, also cited by defendants, the court held that plaintiff had not proved gross negligence where the evidence showed that the defendant, while driving thirty-five miles an hour on a city street, turned his head to the left to point out a tree which had fallen upon a porch. In so doing, he forgot to stop at a stop sign and, upon realizing this, suddenly applied his brakes, throwing plaintiff through the windshield.

The standard of conduct required of an individual is that of the supposed conduct, under similar circumstances, of a hypothetical person, the reasonable man of ordinary prudence who represents a community ideal of reasonable behavior of persons of the same age, intelligence, and experience. Prosser on Torts, 2d Ed., p. 124.

It is true that the defendant Audrey Pendergrast was not yet eighteen years of age at the time of the accident. While the record does not disclose her exact age, we know that she was not far from eighteen since the record does disclose that she had reached her nineteenth birthday by January 1960, at the time of the trial of these cases. So she did become eighteen by January 1959, just four months after the accident occurred.

The first question for us to determine is whether, as a matter of law, the evidence is insufficient to create a jury question on the existence of gross negligence on the part of a high school graduate seventeen years of age. The record discloses that she had been driving since she was twelve years old, and thus she had considerable experience in operating a motor vehicle.

The trial court in its instructions carefully advised the jury of the status of...