Plaintiff’s son Millard Rokusek was killed while riding in an automobile driven by defendant’s son, Albert Bertsch. Plaintiff brought this suit for damages, alleging that at the time of his son’s death, Albert Bertsch was operating defendant’s automobile for a family purpose with the consent of the defendant and that Millard Rokusek’s death was proximately caused by the gross negligence and willful misconduct of Albert Bertsch. The defendant in his answer alleged that Millard Rоkusek, at the time of his death was a guest in the automobile operated by his son, denied that his son had been guilty of any negligence and alleged that both plaintiff and plaintiff’s son had been guilty of contributory nеgligence.
At the trial of the action, both at the close of plaintiff’s testimony and after both sides had rested, defendant moved for a directed verdict. The motion was denied. The case was submitted tо the jury and a verdict was returned in favor of the plaintiff. Thereafter defendant moved for judgment notwithstanding the verdict or in the alternative for a new trial. Before this motion was heard, defendant abandоned his motion for a new trial and elected to stand solely upon the motion for judgment non obstante. This motion was denied. Defendant has appealed from the order denying the motion and from the judgmеnt entered in the case. Upon such an appeal only the ruling on the motion for judgment notwithstanding the verdict may be reviewed and the correctness of that ruling depends upon whether the moving pаrty was entitled to a directed verdict at the time the motion for a directed verdict was made. Weber v. United Hardware and Implement Mutuals Co.
As a basis for his contention that his motion for a directed verdict should have been granted, the defendant asserts,
(1) thаt the evidence in the case affirmatively established that plaintiff-s son was a guest of the defendant at the time he was injured and that there is no. evidence of gross negligence or willful misconduct on the part of defendant’s son, (2) that if the evidence be held sufficient to permit the jury to find that plaintiff’s son was not a guest of the defendant, it is nevertheless insufficient to permit the jury to find ordinary negligence on thе part of defendant’s son..
The, same contentions were made by defendant in. his motion for a directed verdict upon the trial of the case. After denying the motion the trial judge submitted to the jury, as a question of fact, the question of whether plaintiff’s son -was a guest of the defendant. He instructed them that, if they found plaintiff’s son was a guest, they must also find gross negligence or willful misconduct on the part of the defendant’s son in order to charge the defendant with liability. He also instructed them that, if they found plaintiff’s son was not a guest, ordinary negligence on the part of defendant’s son would be sufficient to impose liability.
The jury returned a general verdict against the defendant. Upon which theory they assessed liability it is impossible to say. Because of the nature of this appeal, however, the judgment of the district court must be affirmed i'f the evidence is sufficient to sustain the jury’s verdict upon either theory. If, therefore, the evidence will warrant a finding of gross negligence or willful misconduct, our consideration of the case need go no farther.
The “guest statute”, NDRC 39-1503 provides that the “owner,' driver or person responsible for-the operation of a vehicle” shall, be liable to a guest only where “injury to, or death of a guest, рroximately results from the intoxication,- willful misconduct or gross negligence of such owner, driver, or person responsible for the operation of such vehicle.”
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“ ‘Gross negligence’ is, to all intents and purposes no care at all. It is the omission of the care which even the most inattentive or thoughtless seldom fail to take of their own concerns. It evinces a recldess temperament. It is a lack of care which is practically willful in its nature.” Rubbelke v. Jacobsen,
The question to be decided then is, was the evidence such that the jury could not have reasonably reached the сonclusion that defendant’s son was guilty of gross negligence or willful misconduct?
Plaintiff and defendant and their respective families were members of a rural church located in Hettinger County. In the summer of 1948, daily classes were to be held at the church for the purpose of preparing the young people for confirmation. Both plaintiff and defendant had children who were to attend the classes and arrangements were made, whereby plaintiff’s son was to be transported to and from the church school by the defendant. In accordance with such arrangements defendant did furnish the transportаtion. Sometimes the vehicle furnished was a truck and sometimes it was a passenger car. Sometimes the vehicle was driven by Albert Bertsch and sometimes by his elder brother.
At the close of the school sеssion on the day of .the accident, there were two automobiles present to take the children home from school. One of these cars, the one in which plaintiff’s son rode, was driven by Albert Bertsсh, son of the defendant. The other was driven by Clayton Fuchs. The Bertsch boy was *426 fifteen years old and Fuchs was fourteen. The car driven by Bertsch left the church first. Both cars were going in the same direction and аbout a half mile north of the church the Fuchs car passed the one driven by Bertsch. For some distance, the extent of which is uncertain, the Bertsch car remained behind. Then as the two cars were gоing up a hill the Bertsch car speeded up and passed the Fuchs car at the crest of the hill. As it started down hill it began to swerve from one side of the road to the other. Finally it left the highway completely out of control. It foiled over at least once and eventually came to rest upside down in a field adjacent to the highway. Fuchs testified that when the Bertsch car passed him it was going forty оr fifty miles an hour, that as it passed, it turned sharply to the' right in front of him, forcing him to turn to the right and apply his brakes in order to avoid a collision. Fuchs lost control of his car and it finally turned over on its side but did not leavе the highway. Fuchs also admitted that there had been racing between the cars going to and from the school on previous occasions. One of the passengers in the Bertsch car testified that its sрeed was, in his judgment, seventy miles an hour. There is also testimony that Bertsch’s sister who was a passenger in the car warned him that he was not supposed to go so fast and that Bertsch replied that he was the driver. Another of the passengers in the Bertsch car testified that as it proceeded down the hill skidding from side to side all the kids hollered because they were seared, and that Bertsch kept turning the steеling wheel from side to side. The witness also stated that he thought Bertsch was trying to gain control of the car and that he did not believe the swerving was intentional. According to the testimony of the sheriff of Hettinger Cоunty, it was about four hundred feet from the crest of the hill where Bertsch passed Fuchs to the point where the Bertsch car left the highway and five hundred and four feet from the point where it left the highway to the point where it finally came to rest.
The circumstances of this case are not unlike those in the case of Rawlins v. Lory,
In this case the fact that defendant’s car traveled approximately 400 ft. from the point where it topped' the crest of the hill and started to swerve frоm side to side, to the place where it left the highway, and still had enough speed to travel 500 feet more before it came to rest, would permit a legitimate inference that the car was being drivеn at an excessive speed. The facts that the Fuchs car first passed the Bertsch car and then the Bertsch car passed the Fuchs car and that Fuchs admitted prior racing would, in view of all the other circumstances, permit an inference that the cars were racing. The fact that the Bertsch car cut in so sharply in front of the Fuchs car that Fuchs had to apply his brakes and turn to the right to avoid a collision would permit a conclusion that Bertsch was indulging in reckless and dangerous antics.
We are of the opinion therefore that the evidence is sufficient to sustain a finding by the jury of gross negligence or willful misconduct.
*428 The judgment of the district court is accordingly affirmed.