244 N.W. 392 | S.D. | 1932
J.F. Holdhusen, as administrator of the estate of Louis A. Warnecke, deceased, instituted action against the defendant under the Death by Wrongful Act Statute (Rev. Code 1919, § 2929). Emma Warnecke, wife of decedent, also brought an action to recover from the defendant damages for personal injuries alleged to have been sustained while she was riding in an automobile owned and driven by the defendant. The two actions, arising out of the same accident, were by the agreement of the parties consolidated for the purposes of trial. The trial below resulted in a verdict and judgment for the plaintiff in each case.
The Warneckes resided in the city of Aberdeen. On the morning of the accident, Mrs. Warnecke stated to the defendant that she wished to visit friends near Ipswich, and he replied, "I will take you out there." On the return trip Mrs. Warnecke and her younger son sat in the front seat with the defendant, and the husband, Louis Warnecke, the older son, and a neighbor boy sat in the rumble seat of the car. The defendant passed a car driven by Nathan Bird going in the same direction. Bird then undertook to pass the defendant, and not succeeding in so doing, followed the defendant for at least two miles at a speed of forty-five to fifty-five miles per hour. The defendant had overtaken a car *277 driven by J.F. Holdhusen, and undertook to pass the Holdhusen car. In such attempt the defendant drove his car over the edge of the traveled highway into the ditch on the left hand or north side of the road. The car ran along in the ditch approximately one hundred forty feet, and grazed a telephone post near the edge of the ditch. Louis Warnecke, riding on the left side in the rumble seat, struck his head against this post, causing his death. When defendant attempted to drive the car back onto the grade, it overturned, as a result of which the plaintiff Emma Warnecke received the injuries for which she seeks to recover.
Errors relied upon for reversal of the judgments and orders overruling motions for new trial are: First, that the undisputed evidence establishes that the defendant conveyed the plaintiff wife and her deceased husband at her request and as their agent, and that they therefore assumed all the risk of transportation; second, that if the relationship of host and guest existed, plaintiff wife and her deceased husband acquisced in the negligence of the defendant; and, third, that the evidence does not establish gross negligence on the part of the defendant.
[1] The liability of an owner of an automobile to a gratuitous guest for injuries resulting from the negligence of the former was considered in the case of Barger v. Chelpon,
[2] The negligence of the defendant was not imputable to the plaintiff Emma Warnecke, or her husband. They had no control of the car nor of its management. The relation of master and servant, or of principal and agent, or of being engaged in a joint enterprise, did not exist.
[3, 4] The nonexistence of agency or attributive negligence did not excuse Emma Warnecke and the decedent from exercising due care, and this brings us to a consideration of the second contention that they acquisced in the negligence of the defendant. The decedent was riding in the rumble seat of the car, and it does not appear that he knew the speed at which the car was going or *279 that he had reason to apprehend danger. If he was not without opportunity to remonstrate, it at least could not have been accomplished without much difficulty. These several facts and circumstances must be considered, and it cannot be said as a matter of law that decedent acquisced in the negligence of the defendant. There was evidence that Mrs. Warnecke protested as to the speed the defendant was driving, and it was for the jury to determine whether she acquiesced in the negligent manner in which the defendant drove his car.
[5, 6] The defendant urges upon this court the rule that a person inviting another to ride in his car is not liable for injury to him in the absence of gross negligence, and cites in support of his contention that this court has recognized the doctrine of comparative negligence the case of Carlson v. Johnke,
The judgments and order appealed from are affirmed.
CAMPBELL, P.J., and POLLEY, WARREN, and RUDOLPH, JJ., concur. *280