Green v. Maddox , 168 Miss. 171 ( 1933 )

ON SUGGESTION OF ERROR. Appellant has argued in his suggestion of error, with persuasiveness and ability, that there should be a distinction between a person who is being gratuitously transported in a motor vehicle, upon request for the favor by the person thus transported, and one who, without his request or suggestion, has been invited by the owner or authorized driver. Appellant urges that inasmuch as civilization must advance, as it has advanced, by the gradual elimination of selfishness and the promotion of mutual helpfulness, the establishment of the rule that an owner or driver, who accedes to the call and solicitation of a weary and foot-sore pedestrian, and takes him into a motor vehicle to help him on his way, shall be liable in damages other than for willful or wanton injury, is to set back or retard the processes through which our laws are seeking to find higher levels, and more humane methods of expression.

If the rule against which appellant is contending made the owner or authorized driver a guarantor of the absolute safety of the person who is being gratuitously transported at his own request, what appellant urges would be of compelling force. But the rule embraces no such liability as that just stated. The person being gratuitously transported, without regard to whether he made the request or whether the owner or authorized driver initiated the invitation, assumes all the ordinary risks of injury from dangers and accidents incident to automobile travel. What the rule requires, and all it requires, is that when the owner or authorized driver accedes to the request for a gratuitous transportation the driver must use ordinary and reasonable care not to injure the person thus transported. We must declare that the rule is in strict accordance with humane, unselfish, and mutually helpful considerations, rather than if the rule were otherwise; for it requires of the owner or authorized driver that when mindful of the needs of the weary and foot-sore pedestrian, and so mindful, thereupon gives him a lift, whether with or without his request, the driver shall continue to be mindful of the calls of humanity, and shall not negligently cripple or kill the person who has thus been taken under his care. As said by the Supreme Court of Alabama, Wurtzburger v. Oglesby, 222 Ala. 151, 131 So. 9, 11, in discussing this identical question, "Everywhere the sacredness of life and limb is the declared basis upon which the law imposes a duty of care."

There was a division among the earlier authorities on this question, but the modern decisions are almost unanimous in the holding, with which we agree, that there is no admissible distinction between the self-invited guest, one who himself invites the favor, and the guest who is first invited by the host, for in either case the person being transported is accepted by the owner or authorized driver into his care and keeping, and the latter is in control of an instrumentality which when put in motion becomes dangerous if not handled with proper caution, whereas the person being transported is without control or power to save himself from the illegitimate dangers created by the negligence of the driver in acting otherwise than with due and reasonable care. See the authorities grouped in the annotations, 42 C.J. p. 1057; and particularly the cases, Munson v. Rupker (Ind. App.), 148 N.E. 169, 173; Black v. Goldweber, 172 Ark. 862,291 S.W. 76; Holdhusen v. Schaible (S.D.), 244 N.W. 392; Robinson v. Leonard, 100 Vt. 1, 134 A. 706; Wurtzburger v. Oglesby, supra; and the recent Louisiana cases, Chanson v. Morgan's, etc., Co., 18 La. App. 602, 136 So. 647; Barber v. Lbr. Co. (La. App.), 139 So. 29.

Suggestion of error overruled.