DocketNumber: File No. 6156.
Citation Numbers: 249 N.W. 305, 63 N.D. 579, 1933 N.D. LEXIS 208
Judges: Burke, Nuessle, Bieuzell, Buee, Cheistiaiíson
Filed Date: 6/24/1933
Status: Precedential
Modified Date: 10/19/2024
On the 14th day of October, 1931, the plaintiff, Thressa Anderson, and the defendant, Nick Anderson, her husband, together with Annie Schwager, a sister of the plaintiff, Mrs. Anderson, left Grand Forks in the defendant's automobile to visit a brother of Mrs. Anderson and Mrs. Schwager at Hampden, North Dakota, who was reported to be seriously ill. Hampden is about 136 miles west and a little north of Grand Forks, in the northern part of Ramsey county, North Dakota. En route and while on the regular highway, in attempting to pass a truck, there was an accident, in which Mrs. Anderson and *Page 582 Mrs. Schwager were injured and both brought actions against the defendant, Nick Anderson, the owner of the car and who was driving at the time of the accident.
At the close of the plaintiffs' testimony in each case the defendant moved for a directed verdict which was overruled. At the close of all the testimony the defendant again moved for a directed verdict in each case, which was overruled and the jury, having returned verdicts for the plaintiff in each case, the defendant moved for judgment notwithstanding the verdict, or for a new trial, and from the order granting a new trial in each case the plaintiffs appeal.
The two actions were consolidated and tried as one action on the same evidence. The pleadings were the same in each case. The plaintiffs alleged, in substance, that on the 14th day of October, 1931, the plaintiff was riding as an invited passenger in the defendant's automobile and that the defendant while driving said automobile on the highway near Edmore, North Dakota, while the plaintiff was a passenger, was so grossly negligent and careless in the operation and driving of said automobile that he drove said automobile into the ditch and the plaintiff was seriously injured and damaged, due to the gross negligence and carelessness and wilful misconduct of the defendant in the driving and operation of said automobile at an excessive rate of speed without due regard for the safety and protection of the lives of others.
The defendant alleges, as a defense, that at the time of receiving the injury complained of the plaintiff was riding in the vehicle without giving compensation therefor; that she was a guest of the defendant and that the vehicle was moving on the public highway of the state of North Dakota and that such injury was not proximately caused from the intoxication, wilful misconduct, or gross negligence of the defendant and that under the provisions of chapter 184 of the North Dakota Session Laws for the year 1931 there is no liability upon this defendant for plaintiff's injuries.
The trial judge, in his memorandum opinion, states that at the time the case was submitted to the jury he was of the opinion that chapter 184, Session Laws, 1931, was not applicable to the facts in either case and that he did not take that law into consideration in passing upon the defendant's motion for an instructed verdict, or in his instructions to the jury; but upon consideration of the defendant's motion for judgment *Page 583 notwithstanding the verdict, or for a new trial, he was of the opinion that it did apply and granted the motion for a new trial.
Section 1 of chapter 184 of the Laws of 1931, provides 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 such vehicle. . . . Section 2. Nothing in this Act contained shall be construed as relieving the owner or driver or person responsible for the operation of a vehicle from liability for injury to or death of such guest proximately resulting from the intoxication, wilful misconduct, or gross negligence of such owner, driver or person responsible for the operation of such vehicle; . . . Section 3. For the purpose of this Act the term ``guest' is hereby defined as being a person who accepts a ride in any vehicle without giving compensation therefor."
In the instant case the two plaintiffs were riding in the defendant's car without giving compensation therefor and were, therefore, guests under the statute, and could only recover for an injury received while so riding as a guest in defendant's car from injuries proximately resulting from the intoxication, wilful misconduct or gross negligence of such owner.
The claim is that the injuries resulted from the gross negligence of such owner in driving the car.
There is no conflict in the testimony. The plaintiffs were sitting in the back seat of the car talking to each other and paid very little attention to the road or to the progress of the car. Mrs. Anderson testified: "We weren't paying much attention to the driving, we were talking. There was a truck ahead of us, I remember that, . . . and all I knew was when I said we were going in the ditch, I noticed that; and that's as far as I can tell what happened. I saw the truck just a short time before we went to pass it. I could not tell you whether we passed it, or not. I have been riding in automobiles ever since we owned one, about 16 years. I know when the car is running rapidly or slowly. I should judge it was about forty or forty-five miles, between them two."
The defendant testified that the car was equipped with a horn, a good noisy one. "You can make all kinds of noise with the new horns. *Page 584 It is a good loud horn. The truck was upon its proper side of the road, on the right hand side. I pulled up and I saw he was kind of pulling in on the road, and I probably could have passed him, but the car was running pretty fast. I could not tell you how fast, I was not looking at the speedometer, I was looking at the road. I was going about 40 or 45 miles an hour. I blew the horn about ten rods behind the truck and the car kind of pulled out towards the center of the road, and I switched my car around quick and shoved off in the ditch, with that speed. That's all there was to it, and that's all I can tell you. Q. Did you run into the ditch intentionally? A. Well, I guess not. I never did. . . . It was a clear sunshiny day. There might have been some dust, but not to bother." On cross examination he testified: "Q. And did the driver of the truck from your view-point, show any indication that he heard that horn? A. No. Q. Your car came on up to the truck, and you intended to drive by on the south side? A. Yes. Q. . . . As you came up to that truck, it seemed to you that the truck turned a little to the left? A. He did. Q. As you looked at the space, you figured that there was room for you to go on by the truck? A. Yes. Q. You turned your car, intending to turn your car just to miss the truck? A. Yes. Q. And turned the wheel too far, and ran into the ditch, is that it? A. That's the way it went."
There was no error in granting a motion for new trial but respondent contends that as a matter of law there is no gross negligence upon the part of the defendant and his motion for judgment notwithstanding the verdict should have been granted.
The defendant had a new DeLuxe four door Ford car equipped with four wheel brakes, a loud sounding horn and in good running condition. He had been driving cars for sixteen or seventeen years, mostly Fords. He was familiar with the road, having traversed it with the two plaintiffs about twice a year, visiting the brother and brother-in-law at Hampden, North Dakota. The road was graded and gravelled and there was no other traffic or obstruction at the time. The record shows a very strong affection between plaintiffs and their brother and the defendant. Section 7282, Compiled Laws 1913, defines gross negligence as the want of slight care and diligence.
In the case of Farmers' Mercantile Co. v. Northern P.R. Co.
In Massachusetts a guest cannot recover for an injury except in case it is the proximate result of gross negligence. In the case of Altman v. Aronson,
In the case of Forman v. Prevoir,
In the case of Burke v. Cook,
The Michigan statute provides that "No person, transported by the owner or operator of a motor vehicle as his guest without payment for such transportation shall have a cause of action for damages against such owner or operator for injury, death or loss, in case of accident, unless such accident shall have been caused by the gross negligence or wilful and wanton misconduct of the owner or operator of such motor vehicle and unless such gross negligence or wilful and wanton misconduct contributed to the injury, death or loss for which the action is brought."
In the case of Naudzius v. Lahr,
The Connecticut statute reads as follows: "No person transported by the owner or operator of a motor vehicle as his guest without payment *Page 588 for such transportation shall have a cause of action for damages against such owner or operator for injury, death or loss, in case of accident, unless such accident shall have been intentional on the part of said owner or operator or caused by his heedlessness or his reckless disregard of the rights of others." The right of action for damages is given (1) where the accident is intentional on the part of the owner and (2) when it is caused by his heedlessness or his disregard of the rights of others.
In the case of Silver v. Silver,
"The question for our consideration, however, is not the meaning of a single word in an abstract sense, but its meaning with due regard to its context and the meaning of the entire phrase or sentence in which it appears. We must assume that the Legislature was familiar with the decisions of this court permitting a recovery by a guest in an automobile for injuries resulting from the negligence of the owner or operator, and that, when it undertook to legislate upon that subject, it was with the purpose of making some change in the existing law. Stamford v. Stamford,
"If the phrase ``or caused by his heedlessness' is to be taken as strictly disjunctive as by itself constituting an exception to the general rule of nonliability, and ``heedlessness' is to be synonymous with ``negligence,' the entire statute is nugatory and effects no change whatever in the law as it existed before its enactment. We do not think that is a sensible construction of the statute. It would utterly fail to effectuate the obvious purpose of the Legislature in some way to limit the liability of the owner or operator of a motor vehicle to one who was riding in it as his guest. The language of the statute indicates an intention to limit such liability to two classes of cases: First, when the accident was caused by intentional misconduct; and, second, when it was caused by heedless or reckless disregard of the rights of others, meaning thereby something more than the mere failure to exercise the care of a reasonably prudent man, which is the familiar definition of negligence." This familiar definition of negligence was approved by this court in the case of Bolton v. Wells,
In the case of Ascher v. H.E. Friedman,
In the instant case the defendant was driving in the country on a well graded gravelled highway and when he was about ten rods behind the truck he blew his horn and started to pass the truck. If the truck had remained in the position it was when he first blew the horn he would have had room to pass, but just as he got near the truck it turned into the road and the defendant said he still thought he had room to go by. This was an error of judgment, as in the case of Ascher v. H.E. Friedman,
NUESSLE, Ch. J., and BIRDZELL, BURR and CHRISTIANSON, JJ., concur.
Naudzius v. Lahr , 253 Mich. 216 ( 1931 )
Menzie v. Kalmonowitz , 107 Conn. 197 ( 1928 )
City of Stamford v. Town of Stamford , 107 Conn. 596 ( 1928 )
Fitzmaurice v. Fitzmaurice , 62 N.D. 191 ( 1932 )
Farmers' Mercantile Co. v. Northern Pacific Railway Co. , 27 N.D. 302 ( 1914 )
Silver v. Silver , 108 Conn. 371 ( 1928 )
Ascher v. H. E. Friedman, Inc. , 110 Conn. 1 ( 1929 )