Stockfeld v. Sayre

Decision Date28 January 1939
Docket NumberNo. 6562.,6562.
Citation283 N.W. 788,69 N.D. 42
PartiesSTOCKFELD v. SAYRE et al.
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, of Grand Forks, for appellant.

Carroll E. Day, of Grand Forks, for respondent.

BURR, Judge.

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 confronted with this problem, the approaching car being so near, he deemed it unsafe to take the ditch at the right as he was too near the shoulder of the road and would upset, and so decided to dart across to the left side of the road in the hope he would be able to pass the oncoming car on that side or take the left-side ditch at such an angle as to safeguard the lives of the occupants of his car. He had but a few seconds to determine this issue, and he determined on the latter course. He testified: “I had scarcely gotten over to the left side of the center when the Barto car suddenly swerved back to the east side of 44. Then it was only a split fraction of a second in which to act. I gave the steering wheel a sudden jerk to get into the lefthand ditch, but I didn't quite make it.” Further he stated that as soon as he saw the car swerve toward him he put his foot “on the gas pedal and with all the strength I had gave the wheel a jerk, and did everything I could to get in that lefthand ditch, but didn't make it.”

This approaching car was driven by the defendant Barto. (Later he was convicted of manslaughter in the second degree because of this collision.) Barto himself was injured and while in the hospital was interviewed. At that time he admitted he had been traveling at a speed of between fifty-five and sixty miles an hour; that he had been over in East Grand Forks and there drank intoxicating liquors; that he had a bottle of whiskey with him and had drunk from this bottle. The record shows he and a companion had left Grand Forks shortly after five, traveling north. He was under the influence of intoxicating liquors. While thus traveling he was running from fifty to sixty miles an hour, on his left side of the road part of the time, and had forced another car almost into the ditch.

In the collision involved in this action the guest and the three children were killed. The record is silent as to what the guest saw, said, or did.

The plaintiff brought this action against the drivers of both cars, alleging that the collision occurred because of the gross negligence of the defendant Sayre and the negligence and carelessness of the defendant Barto.

The defendant Sayre answered, admitting that William Stockfeld was his guest on this trip and that the latter died as a result of the injuries received in the collision, denied negligence on his own part, alleged that the deceased William Stockfeld was riding in the front seat of the automobile as his guest, “had clear vision ahead, and full opportunity to observe * * * the approaching automobile * * and * * * to offer any suggestions he wished with respect to the best method of meeting the emergency * * * but * * did not protest, and assumed any risk incident to the operation of his host's car * * *,” and further alleged that the collision was caused by the negligence of the defendant Barto operating his car “while in an intoxicated condition; * * * driving on the left side of the highway at an excessive, dangerous and unlawful rate of speed * * *.”

Defendant Barto defaulted. The case was submitted to the jury and a verdict returned in favor of the defendant Sayre for the dismissal of the action against him.

The plaintiff moved for a new trial based on the same specifications of alleged error as on this appeal. The trial court denied the motion and plaintiff appeals.

Appellant sets forth twelve specifications of error, as follows: The court erred in instructing the jury:

1. “The burden of proof is upon the plaintiff to establish by a fair preponderance of the evidence that the collision and the death of William Stockfeld resulting therefrom were due to the gross negligence of the defendant, Josiah L. Sayre.”

2. “It is undisputed that William Stockfeld was riding in the car of the defendant, Josiah L. Sayre, at the time of the accident, as the guest of the defendant, Josiah L. Sayre. It is provided by the laws of this State 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 said vehicle, unless the injury to such guest is the proximate result of the intoxication, wilful misconduct or gross negligence of such owner, driver or person responsible for the operation of such vehicle.”

3. “Gross negligence is the want of slight care and diligence. Slight care and diligence is such care and diligence as persons of ordinary prudence usually exercise about their own affairs of slight importance. Gross negligence is, to all intents and purposes, no care at all. It is the omission of 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 the absence of even slight care.”

4. “If you find from the evidence that the deceased, William Stockfeld was able to observe any danger incident to the meeting of the two cars, and had an opportunity to warn the defendant Sayre about the danger, and did not do so, then the decedent, William Stockfeld, acquiesced in, and assumed the risk of such driving and management of the car by the defendant, Sayre, at the time of the collision.”

5. “Before you can find a verdict against the defendant, Sayre, you must be satisfied from a fair preponderance of the evidence that the defendant Sayre was grossly negligent in operating his car at the time of the collision, and that such gross negligence was the proximate cause of the injury to, and death of William Stockfeld.”

6. “You are further instructed that if you find that the defendant, Mathew Barto, was negligent in the operation of the automobile he was driving, and that such negligence on the part of Mathew Barto was the proximate cause of...

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5 cases
  • Brauer v. James J. Igoe & Sons Const., Inc., 8570
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    • March 30, 1971
    ...serve to excuse the responsibility of this defendant for its conduct, and the requested jury finding was immaterial. Stockfeld v. Sayre, 69 N.D. 42, 283 N.W. 788 (1939); Michaelsohn v. Smith, 113 N.W.2d 571, 8 A.L.R.3d 1183 (N.D.1962); Meyer v. Robb, Supra; McWilliams v. Kentucky Heating Co......
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    • United States
    • North Dakota Supreme Court
    • January 28, 1939
  • Michaelsohn v. Smith
    • United States
    • North Dakota Supreme Court
    • February 15, 1962
    ...concurring negligent acts of two parties are the proximate cause of injury, each delinquent is responsible for the result. Stockfeld v. Sayre, 69 N.D. 42, 283 N.W. 788. The issue is whether the 'Family Purpose Doctrine', as applied to automobiles, will prevent a father from recovering for d......
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    • North Dakota Supreme Court
    • January 28, 1939
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