Eddy v. Wells , 59 N.D. 663 ( 1930 )

The respondent has petitioned for a rehearing on the ground that the court in the foregoing opinion ignored his assignment of error predicated on that portion of the charge reading as follows:

". . . that if the plaintiff knew or should by the exercise of reasonable care have known that the defendant was traveling at a negligent rate of speed, it was his duty to protest or to warn the defendant, and if he failed to do so, then he was himself negligent, and cannot recover damages here under any claims of excessive speed."

He insists that this instruction in effect directed the jury to return a verdict for the appellant if they should find the respondent had failed to protest as to the speed at which the car was being driven.

It is true that we did not in the foregoing opinion particularly refer to the assignment on which the respondent bases his petition for rehearing, but we did make plain that, considering the whole instruction with respect to the matter of contributory negligence, the jury were told that unless such negligence on the part of the plaintiff contributed to the accident and the accident would not have occurred without it, there was no contributory negligence which would defeat a recovery. It is to be noted that immediately following that portion of the charge quoted above and to which the respondent excepts, the court further charged:

". . . that if plaintiff knew or should have known by exercise of reasonable care, that defendant was driving at a negligent rate of speed, considering the condition of the roads, and you further find that he made no protest to the defendant against such speed, and that his failure to so protest was negligence on his part, and that such negligence was a proximate cause of the injury to himself, then, and in this event, you will find for the defendant. The rule is that whenever the plaintiff's case shows any want of ordinary care under the circumstances contributing in any degree as a proximate cause of the injury for which he brings his action, he cannot recover even though defendant was also negligent. The plaintiff's fault does not affect his right of action unless it proximately contributed to his injury. It must be a proximate cause in the same sense in which defendant's negligence must have been the proximate cause in order to give any right of action."

Of course the several parts of the charge must be considered together. Thus considered we think the jury could not have been misled by that portion of which the respondent complains even though, standing alone, it would have been erroneous.

But we think that on the facts disclosed by the record the portion challenged correctly stated the law applicable. Of course the appellant was under the duty to use ordinary care considering all the circumstances so as not to increase the hazards reasonably incident to the use of the automobile in which he was carrying the respondent as his guest. On the other hand, the respondent as guest was himself required to exercise such care as was reasonable and practicable to avoid injury. Leclair v. Boudreau,101 Vt. 270, 63 A.L.R. 1427, 143 A. 401, and note. He was an experienced driver of automobiles. He knew the speed at which the car was being driven. He believed it was excessive and dangerous considering the condition of the road. It is clear he had an opportunity to protest and warn the appellant if he had desired to do so. He did not see fit to do either. Notwithstanding the apparent danger he was content with the speed at which the car was being driven. The instruction in question was that if respondent knew the appellant was driving at a negligent rate of speed and failed to protest or to warn him, then respondent was himself negligent. The instruction restricted the effect of such negligence to claims for damages on account of excessive speed. If there was negligence on the part of the appellant the respondent acquiesced in it and so was himself negligent and therefore cannot complain of the consequences. As was said in Hardy v. Jesse, 189 Wis. 652, 207 N.W. 706:

"We fully appreciate the delicate situation of a gratuitous guest when it comes to protesting or remonstrating to the host with respect to illegal speed or with respect to any other negligence in the operation of a car. However, the law in this state is now well-established, as will appear from the foregoing decisions, that a gratuitous guest cannot idly sit by, observe clear violations of law, in fact acquiesce in them, and then, in the event of an accident, hold his host liable in damages. The privilege of a gratuitous ride is accompanied by a corresponding obligation, and such obligation must be met, if liability should ensue."

And on the question of contributory negligence generally, see the following authorities: Silver v. Silver, 65 A.L.R. 943, and note (108 Conn. 371, 143 A. 240); Sharp v. Sproat, 26 A.L.R. 1421, and note (111 Kan. 735, 208 P. 613); Paiewonsky v. Joffe, 40 A.L.R. 1335, and note (101 N.J.L. 521, 129 A. 142); Schwartz v. Johnson, 47 A.L.R. 323 and note (152 Tenn. 586, 280 S.E. 32, 25 N.C.C.A. 692); Marple v. Haddad, 103 W. Va. 508, 61 A.L.R. 1248,138 S.E. 113, supra; Cleary v. Eckart, 51 A.L.R. 576, and note (191 Wis. 114, 210 N.W. 267).

The petition is denied.

BURKE, Ch. J., and BURR, BIRDZELL and CHRISTIANSON, JJ., concur.