Granflaten v. Rohde , 66 S.D. 335 ( 1938 )

The majority opinion attempts to distinguish the case of Martins v. Kueter, 65 S.D. 384, 274 N.W. 497, from the facts in the case before us by stating that the defendant in that case knew that he was approaching a turn in the highway and was aware of the probable consequences in attempting to make the turn at a high and dangerous rate of speed. I am not persuaded that that element of recklessness is any greater than the knowledge the defendant in the present case had, knowing that something must happen if he met a car approaching from the opposite direction when attempting to pass a car going the same direction, and his conduct of absolute indifference to the warning of his guests is no less than the statement by the defendant in the Martins v. Kueter Case, that he was taking them for a thrill ride. The facts and circumstances of the instant case show clearly that this defendant was guilty of "gross negligence or wilful and wanton misconduct."

That the defendant drove over a busy highway at night at an extremely high rate of speed; that he continually overtook and passed other cars, sometimes while going over hills; that he had previous knowledge of the hilly nature of the highway and the dense oncoming traffic; and that he was warned several times by the passengers in the car, leave no room for doubt in my mind that this defendant "intentionally did something in the operation of a motor vehicle which he should not have done or intentionally failed to do something which he should have done, under such circumstances that it can be said that he consciously realized that his conduct would in all probability (as distinguished from possibly) produce the precise result which it did produce and would bring harm to the plaintiff." Measured by any standard of conduct whatever, this defendant was clearly guilty of actionable negligence under the statutes of this state and the decisions of this court interpreting them.