Stockfeld v. Sayre

Decision Date28 January 1939
Docket Number6562
Citation283 N.W. 788,69 N.D. 42
CourtNorth Dakota Supreme Court

Syllabus by the Court.

1. Under the provisions of Chapter 184 of the Session Laws of 1931, commonly known as the " guest statute", a guest who accepts a ride in any vehicle on the highways of the State, and while riding as such guest sustains an injury has no right of recovery against the owner or driver or person responsible for the operation of such vehicle, nor does the estate or the legal representative or heir of such guest; unless the injury or death sustained proximately results from the intoxication, wilful misconduct, or gross negligence of the owner or person responsible for the operation of the vehicle, and in such case the burden is upon the plaintiff to establish that such delict was the proximate cause of the death or injury.

2. Where the injury to such a guest is caused by the concurrent act of negligence on the part of the host and negligence on the part of a third person for whose act neither the plaintiff nor the defendant is responsible and would not have happened in the absence of either, the concurring acts are the proximate cause of the injury, and each delinquent is answerable for the result.

3. In such an action to recover damages for the death of a guest brought against the host and a third person for whose act neither the plaintiff nor the host is responsible, the host is not responsible in damages unless the plaintiff prove his concurring act of negligence was gross negligence, and the fact that the plaintiff has joined this third person as a joint tort feasor does not permit the plaintiff to recover against the host for ordinary negligence.

Appeal from District Court, Grand Forks County; P. G. Swenson Judge.

Action by Mrs. William Stockfeld against Josiah L. Sayre and another for the death of plaintiff's husband, resulting from an automobile accident. A verdict was returned for named defendant, and from a denial of plaintiff's motion for a new trial, plaintiff appeals.

Order denying a new trial affirmed.

S. Theodore Rex, for appellant.

It is well settled that, where two or more causes join, and by contemporaneous action produce a single injury, the author of each cause is liable, even though the authors acted independently of each other. Asch v. Washburn Lignite Coal Co. 48 N.D. 734, 186 N.W. 757; 5 Am. Jur. 687.

The general rule is that where the negligence of two or more persons concurs in producing a single, indivisible injury, and this though there was no common duty, common design, nor concert of action, such persons are jointly and severally liable. Edwards v. Great Northern R. Co. 42 N.D. 154, 171 N.W. 873; Lindsay v. Acme Cement Plaster Co. 190 N.W. 275; Traylen v. Citraro, 297 P. 649; Smith v. Schwartz, 57 P.2d 1386.

The negligence of the driver of a machine, however, cannot be imputed to a passenger therein in the absence of any evidence showing that the latter exercised some control over the driver, or that he possessed the power to supervise or direct the manner in which the automobile should be operated. Marchetti v. Southern P. Co. 269 P. 529; Kroiher v. Jenkins, 6 P.2d 96; Castro v. Singh, 21 P.2d 169; Queirole v. P.G. & E. Co. 300 P. 487; Krause v. Rarity, 293 P. 62; Curran v. Anthony Co. 247 P. 236.

Where the situation of peril arises because of the driver's own negligence, the emergency rule cannot be invoked in his behalf. Moreover, the emergency rule does not apply if the driver is not in a position of sudden peril, even though he mistakenly thinks he is because he does not use his sense of sight to see what is plainly observable. 5 Am. Jur. 600; Bolton v. Wells, 58 N.D. 286, 225 N.W. 794; 42 C.J. 891; Brooks v. Monterey, 290 P. 540; Yates v. Morotti, 8 P.2d 519.

Concurrent negligence arises where the injury is proximately caused by the concurrent wrongful acts or omissions of two or more persons acting independently. 45 C.J. 925 (note); Blashfield, Enc. of Automobile Law, 1935 ed. §§ 3151-3156.

Gross negligence falls short of being such reckless disregard of probable consequences as is equivalent to a wilful and intentional wrong. Wilful negligence involves the element of conduct equivalent to a so-called constructive intent. Sorrel v. White, 154 A. 359.

Negligence, whether contributory or primary, is a question of fact, never of law, unless the facts from which the inference can be drawn admit of but one conclusion. State v. Yellow Cab Co. 62 N.D. 733, 245 N.W. 382.

But whether negligence or contributory negligence exists depends upon the facts and circumstances of the particular case. Note in 113 A.L.R. 1331.

Carroll E. Day, for respondent.

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. Farmers Mercantile Co. v. Northern P.R. Co. 27 N.D. 302, 146 N.W. 550; Schwager v. Anderson, 63 N.D. 579, 584, 249 N.W. 305; Rubbelke v. Jacobsen, 66 N.D. 720, 722, 268 N.W. 675; Jacobs v. Nelson, 67 N.D. 27, 31, 268 N.W. 873.

In the construction of statutes which specifically refer to gross negligence, that phrase is sometimes construed as equivalent to reckless disregard. Am. Law Inst. Restatement, Torts, Vol. 2, p. 740.

In determining whether conduct is negligent toward another, the fact that the actor is confronted with a sudden emergency not caused by his own tortious conduct which requires rapid decision is a factor in determining the reasonable character of his choice of action. Am. Law Inst. Restatement, Torts, Vol. 2, p. 296; Jacobs v. Nelson, 67 N.D. 27, 268 N.W. 873.

Gross negligence is such a degree of recklessness as approaches wanton and wilful misconduct. Posey v. Krogh, 65 N.D. 490, 500, 259 N.W. 757.

The requirement of the law is that the conduct of the person involved shall be consistent with what a man of ordinary prudence would do under like circumstances. 20 R.C.L. 135, § 111; Wilson v. Roach, 101 Okla. 30, 222 P. 1000; Frish v. Swift & Co. 97 Neb. 707, 151 N.W. 165; Kardasinsai v. Koford, 190 A. 702; Jacobs v. Edwards, 171 So. 165; Cooper v. Steptoe, 5 La.App. 462; Lawson v. Dye, 145 S.E. 817.

When an emergency arises, and the driver finds himself in a position of peril, it is not only his privilege, but it is his duty to turn to the left to try to avoid the collision, if possible. Shaw v. Wilcox, 224 S.W. 58; Goodson v. Produce Co. 10 La.App. 486, 120 So. 689; Albright v. Joplin Oil Co. 206 Mo.App. 412, 229 S.W. 829; Burke v. Cook, 246 Mass. 518, 141 N.E. 585; Posey v. Krogh, 65 N.D. 490, 259 N.W. 757; Rubbelke v. Jacobson, 66 N.D. 720, 268 N.W. 675.

If the undisputed facts are of such a nature that reasonable men might draw different conclusions or deductions therefrom, then the question of negligence must be submitted to the jury. Jacobs v. Nelson, 67 N.D. 27, 268 N.W. 873; O'Mally v. Eagan, 2 P.2d 1063. 77 A.L.R. 582; Miller v. Stevens, 63 S.D. 10, 256 N.W. 152; Farmers Mercantile Co. v. N.P.R. Co. 27 N.D. 302, 146 N.W. 550.

The concurring negligence of another cannot transform the remote into the proximate cause of an injury or create or increase liability therefor. 45 C.J. 923.

Instructions in the language of a statute are sufficient, since "laying down the law in the words of the law itself ought not to be pronounced to be error." 64 C.J. 633.

One who rides as a guest in an automobile does so subject to the hazards reasonably incident to the use of such a vehicle; but the host must use ordinary care considering all the circumstances so as not to increase such hazards. Eddy v. Wells, 59 N.D. 663, 231 N.W. 781; Cleary v. Eckart, 191 Wis. 114, 210 N.W. 267, 51 A.L.R. 576; Grover v. Sherman, 252 N.W. 680.

Burr, J. Nuessle, Ch. J., and Christianson and Morris, JJ., concur.


The undisputed facts show that defendant Sayre, on the 13th of December, 1936, arranged for a pleasure trip from Grand Forks to Grafton and return, taking with him his three minor children, the oldest being about seven years of age. He invited his friend William Stockfeld, the husband of the plaintiff, to go with them as his guest. The two men sat in the front seat and the children in the rear. They drove to Grafton on highway No. 81 and returned on highway No. 44. Sayre at no time drove faster than thirty-five miles an hour as the car was new and on its first trip. At about 5:30 P.M., when about four miles from Manvel on the return trip, he noticed an approaching car, possibly a mile from him, but paid little attention until he noted that the car had swerved from its right side of the road to the side upon which Sayre was driving. He blinked his lights several times as a warning; but the car continued its approach at a rate of about sixty miles an hour. The defendant had never been on this road in daytime. It was dark, and he did not know the depth of the ditch to his right, but assumed it was the same as those on the adjacent highway No. 81, or three or four feet. It developed on the trial that the ditch on each side of the road at the point where the accident took place was only about two feet deep, with a fair slope. When the approaching car was about one hundred yards distant, and rushing rapidly on the wrong side of the road, Sayre considered whether he should take to the ditch on the right-hand side of the road in order to save his guest, his children, and himself; whether he should continue on the right side of the road in the hope that the approaching car would stop or swerve; or whether he should attempt to cross the road, pass on the left side, and as a last resort take to the ditch on his left side. Being...

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