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gence as bars recovery, and that the giving gotten back from Crawfordsville to Indian. or refusal to give instructions would not, apolis by the interurban railroad, and from even though erroneous, be reversible error. Covington he could have gotten back on the

The evidence bearing on the question of railroad. contributory negligence is in substance as The evidence shows that it took them at follows: Mr. and Mrs. Rupker, with their least an hour and a half to run from Emsmall child, and Mr. Summers left the Kup- ericksville to Crawfordsville-a distauce of ker home about 2 p. m., and drove to appel- 40 miles. If it took an hour and half lant's office, where he got into the automo- to run that distance the average speed durbile. After stopping at a store for a few | ing that time was a trifle less than 27 minutes, and at a filling station to get some miles an hour. The natural inference, then, gasoline, they started out on the Crawfords- is that they were not traveling at a speed ville road. They stopped before leaving In- of 35 to 40 miles an hour for any great disdianapolis at Emericksville bridge, leaving tance before reaching Crawfordsville. there some time between 3 and 3:30, and There is no evidence as to the character of reaching Crawfordsville about 5 p. m. where the road other than that it was a gravel road they stopped long enough for Mr. Rupker to at the place of the accident. Appellee tesget out and buy a flashlight. While at Craw- tified that where there was a stretch of good fordsville appellant got out of the automo road he would go at a eed of from 30 to 35 bile, as he says, to "stretch himself.” They miles an hour, and at other times from 18 to stopped once between Crawfordsville and 20 miles an hour. The evidence as to the Covington, when appellant got out to inquire speed after the parties left Crawfordsville about the road to Covington. They stopped and the times and places where appellant at Covington long enough to inquire the way. I spoke to appellee about the speed of the auNo one got out of the automobile at Coving- tomobile is as indefinite as it is as to the ton. The accident took place 4 miles west of speed before reaching Crawfordsville. The Covington. It was dark at the time. The automobile in which they were riding was lights on the automobile had been turned on an eight cylinder Peerless touring car. before they reached Covington.

[1] We cannot under this evidence say as Appellant test ed that before reaching a matter of law that appellant should have Covington, and while traveling a distance of gotten out at Crawfordsville or at any oth80 miles, be called appellee's attention to the er place and not have gone any farther with speed of the automobile eight to twelve the party, or that he was guilty of such pegtimes; that on each of such occasions appel- ligence as necessarily bars a recovery. lee was running about 35 or 40 miles an In Cram v. City of Des Moines, 185 Iowa, hour. The evidence does not show how many 1292, 172 N. W. 23, 18 N. C. 0. A. 162, there times appellant called appellee's attention to was a judgment for defendant. On appeal the speed before reaching Crawfordsville; the plaintiff', as in the instant case, challeng. nor does it show at what point or points on ed the action of the court in giving instructhe road he spoke to appellee about the speed tions, and the defendant contended that the of the automobile. Appellant, when asked as action of the court in giving the instructions to whether he spoke to appellant a number of times before reaching Crawfordsville, said

was not reversible error, for the reason that he would not say it occurred a number of the evidence showed the plaintiff was guilty times, but that it occurred. It may accord- of contributory negligence and not entitled ing to his testimony have occurred but once to recover in any event. In denying the conwhile traveling the 40 miles before reaching tention the court said: Crawfordsville, and that one time may have been just after leaving Indianapolis. The “But we fail to see the applicability of the speed of the automobile, while traveling the rule. We are not favored with any suggestion last 30 or 35 miles before reaching Craw- how we may, in reason, hold, as matter of law, fordsville, may have been such as would not awarded. We are not prepared to say that if,

that plaintiff must fail should a new trial be have impressed a reasonably prudent person

on remand, a jury should find that the driver that it was unsafe to continue riding in the

was not negligent, or that, if he was, the plainautomobile. Appellant testified that each tiff did not contribute to the negligence, we time he spoke to appellee about the speed should hold, on appeal, that such finding cannot they were going about 35 or 40 miles an be sustained on the evidence. For that mathour, which he said was too fast to suit him ; ter, we cannot know in advance that plaintiff that it was because he anticipated that the will not add to the strength of his testimony. speed of the automobile might result in an The rule invoked by appellee is applied where injury that he warned appellee. When out of appellate court can find that some essential to the automobile at Crawfordsville he knew is where there is judgment against an officer

recover is nonexistent. A familiar illustration appellee had been driving the automobile in for having levied upon property belonging to the manner as described by him; that he another than the execution defendant, and it ap. got back into the car voluntarily; that he pears that no notice of ownership was served. made no demand that appellee stop the auto- | As said, we cannot affirm on the ground that mobile and let him out; that he could have reversal and remand will be idle."

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(148 N.E.) In Clark v. Traver, 205 App. Div. 206, 200 | instruction No. 4 given by the court at the X. Y. S. 52, cited by appellee, the plaintiff request of appellee, wherein the court inand another man were sitting in the seat by structed the jury that, if it found “from the the side of the driver. They had gone 75 evidence that plaintiff was riding at his own or 80 miles at the terrific rate of 50, 60, and request and merely by sufferance or with70 miles an hour, slowing down to 45 or 50 out objection by defendant, and not as the miles an hour only when going through a invited guest,” etc. Appellee's contention is town. One and only one complaint was made that appellant was simply a guest or passenby the plaintiff in that case, and that was ger in the automobile at sufferance or with shortly after they had started, and at a time nis (appellee's) passive consent, and that unwhen, as the plaintiff testified, they were go- der such circumstances the only duty he ing between 60 and 70 miles an hour, and owed appellant was not to wantonly or inwhen he told the driver he "was going too tentionally injure him. fast," and that he, plaintiff, "did not care The hospitality of an owner and driver of so much about riding that way." The facts an automobile should not be burdened with in that case are not to be compared with the a responsibility that makes it unreasonably facts in the instant case.

hazardous for him to invite or even permit If in the instant case the testimony of ap- another to occupy a seat in his automobile. pellee is to be given consideration in deter- But one who takes another into one of these mining the question of appellant's negligence, high-powered swiftly moving machines knows a court or jury would be justified in finding disaster may follow, unless he operates it that appellant was not guilty of any contrib- with the required degree of care. He must utory negligence. If appellee's testimony is know and realize that he has voluntarily believed, it is clear he was not guilty of any | taken the life and safety of a human being negligence before reaching Covington. If he into his care. As was said in O'Shea v. Lawas not guilty of negligence before reaching voy, 175 Wis. 456, 185 N. W. 525, 20 A. L. R. Covington, we are not prepared to say that 1008: appellant was guilty of contributory negli "He must realize that he has voluntarily regence,

ceived into his keeping the lives and safety of Appellant by instruction No. 5, requested his passengers, and he should not be permitted the court to instruct the jury that, if it found to trifle therewith, or to renounce all responsi.. he was in appellee's automobile at the re- bility in such respect." quest or with the consent of appellee, that

[2] The general rule as established by the appellee failed to use reasonable care in the authorities is that the owner or operator of operation of his automobile, that appellant an automobile owes to an invited guest the received his injuries by reason of such fail duty of exercising reasonable care in its opure to use reasonable care, and without any eration and not unreasonably to expose him negligence of appellant contributing thereto, to danger and injury by increasing the haz their verdict should be for appellant. The ard of travel. Perkins v. Galloway (1915) 194 court refused to give this instruction, but, Ala. 265, 69 So. 875, L. R. A. 1916E, 1190, secafter modifying it by inserting the word "ac- ond appeal Galloway v. Perkins, 198 Ala. 658, tive" before the word "consent,” gave it as

73 So. 956; McGeever y. O'Byrne (1919) 203 modified. Other similar changes were made Ala. 266, 82 So. 508; Spring v. McCabe in instructions tendered by appellant. Instruction No. 4, given by the court at the (1921) 53 Cal. App. 330, 200 P. 41; Barnett

v. Levy (1919) 213 Ill. App. 129; Masten v, request of appellee, is as follows:

Cousins (1919) 216 Ill. App. 268; Beard v. "One of the material allegations in plaintiff's Klusmeier (1914) 158 Ky. 153, 164 S. W. 319, complaint is that at the time of the accident | 50 L. R. A. (N. S.) 1100; Ann. Cas. 1915D, 342; in question the plaintiff was riding with the de- Fitzjarrell v. Boyd (1914) 123 Md. 497, 91 A. fendant as the invited guest of said defendant. 547; Bauer v. Griess (1920) 105 Neb. 381, The court instructs you, if you find from the

181 N. W. 156; MacKenzie v. Oakley (1920) evidence that plaintiff was riding at his own request and merely by sufferance of or without 94 N. J. Law, 66, 108 A. 771; Tennessee, etc., objection by defendant, and not as the invited R. Co. v. Vanhoy (1920) 143 Tenn. 312, 226 S. guest of said defendant, and without any con- W. 225; Glick v. Bear (Wis.) 201 N. W. 752; tract between plaintiff and defendant whereby Pigeon v. Lane, 80 Conn. 237, 67 A. 888, 11 plaintiff was to compensate defendant, then in Ann. Cas. 371; Mayberry v. Sivey, 18 Kan. that case the defendant would owe no duty to 291; Avery v. Thompson, 117 Me.. 120, 103 A, plaintiff except not to injure him intentionally 4, L. R. A. 1918D, 205, Ann. Cas. 1918E, or willfully; and, if the facts be as indicated 1122; Hemington v. Hemington, 221 Mich. in this instruction, then your verdict should be 206, 190 N. W. 683; Clark v. Traver, 205 App. for the defendant, unless you find from the evi: Div. 206, 200 N. Y. S. 52; Patnode v. Foote, dence that defendant intentionally or willfully brought about the injuries complained of.”

153 App. Div. 494, 138 N. Y. S. 222.

In Perkins v. Galloway, supra, after a reWe take it that the court by the use of the view of the authorities, it was held: (1) expression “active consent meant to exclude One not a common carrier, who voluntarily acquiescence or implied consent. That this undertakes to transport another in his au. was what the court meant is made clear by tomobile, is responsible for injury to the per

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son transported resulting from negligence of the driver or owner of the machine creates whether the service was for compensation or no exception to the general rule. The driver of was gratuitous. (2) The duty of the owner

a motor vehicle is under obligation of exercising of an automobile to the occupant of the car reasonable care, not only for the safety of peis to exercise reasonable care in its opera- safe transportation of his guests and other pas

destrians and other travelers, but also for the tion not to unreasonably expose to danger sengers in the machine. The express or imand injury the occupant by increasing the plied duty of the owner and driver to the occuhazard of the method of travel, but he must pant of the car is to exercise reasonable care in exercise the care and diligence which a man its operation, and not unreasonably to expose of reasonable prudence engaged in like busi. him to danger by increasing the hazard of that ness would exercise for his own protection method of travel.

Failing in this duand the protection of his family and prop- ty, he will be liable to the occupant in the car erty.

for injuries which are the result of such care

lessness or lack of diligence." On the second appeal, Galloway v. Perkins, supra, the rule as stated on the former

The rule announced is followed and apappeal was reaffirmed; the court saying:

proved in Hemington v. Hemington, supra. "It does seem to be a harsh or hard rule In Pigeon v. Lane, supra, it was held that which makes the carrier or host liable to the as to the licensee the owner of the vehicle passenger or guest as for injury or death, in could be held liable for his "active neglithe absence of gross negligence or wantonness, gence” which would include his negligent especially when the passenger or guest is treat acts by which the danger was increased, or ed by the carrier or host, just as the latter

a new danger created, while the plaintiff himself is treated, and when both are injured by the same accident, as in this case. If this

was riding under such license.

In Dickerson v. Connecticut Co., 98 Conn. be so, the reply is: The law is so written, and cannot and should not be changed to meet hard 87, 118 A, 518, where a guest was injured cases; such instability would make shipwreck while riding in an automobile, the defendof the law."

ant insisted that “active negligence" was the

test of his liability. Pigeon v. Lane was ex. And, after calling attention to the fact plained; the court saying the term “active that it had been held that a gratuitous car- negligence" meant no more than want of or. rier of goods, like a gratuitous bailee of dinary care. goods, was not liable to the owner of the

A few jurisdictions have held that as begoods, in the absence of gross negligence, it tween an invitor and invitee in case of grawas held that the owner and driver of an au- tuitous transportation the driver of the vetomobile who undertakes to transport anoth- bicle must be guilty of gross negligence heer gratuitously is liable for injuries to such fore he can be held liable for an accident. person, notwithstanding the rule as to the See Massaletti v. Fitzroy, 228 Mass. 487, 118 carriage of goods gratuitously by one not a N. E. 168, L. R. A. 1918C, 264, Ann. Cas. common carrier. Referring to the evidence 1918B, 1088, 18 N. C. C. A. 690. But in jurisin that case the court said:

dictions like Indiana, where there are no dle“It was not necessary to a recovery that de- grees of negligence, the doctrine of gross fendant himself should have expressly invited negligence is not applicable. intestate to ride in the car. The deceased was There are also a few cases holding that a clearly not a trespasscr, and was expressly in person riding in an automobile for his own vited by one of the parties in the automobile, accommodation, and gratuitously, cannot and his presence in the car was known and ac- hold the driver liable, unless the latter is ceded to by the defendant. The duty of defendant not to injure the deceased was therefore the guilty of a wanton or intentional wrong. same as if he had erpressly invited deceased to See Crider v. Yolande Coal, etc., Co., 206 ride with him

* Under all the evidence Ala. 71, 89 So. 285, where the court, in speakthere can be no reasonable doubt that deceased | ing of one who was permitted to ride in a was a passenger in the automobile, and that the motor truck as an accommodation, and gradefendant owed him the duty which he owed tuitously, said: any other passenger therein, and this whether or not he was the defendant's expressly invited sumed all the risks of carriage except such as

"He was at best a mere licensee, and asguest.” (Our italics.)

might result from wanton or intentional wrong To the same effect see McGeever v. O'. or a failure to exercise due care to avert inByrne, supra.

jury after his danger became apparent." This rule is stated in Huddy on Automobiles (5th Ed.) 8 678, as follows:

And in Lutvin v. Dopkus, 94 N. J. Law,

64, 108 A. 862 (two cases), the parties to the “When the occupant of an automobile is in actions were members of a social organizajured through the operation of the machine, and it is shown that the driver was negligent and tion, which held a celebration at Staten Is

land. the occupant was not guilty of contributory

The defendant, residing at Staten negligence, it is clear that the latter can main- Island, and 'being the owner of an automotain an action against the driver and recover bile, was solicited by the plaintiffs to take compensation for injuries. The fact that the them to the picnic grounds and return in his occupant was a guest or gratuitous passenger automobile. On the return trip the car was

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(148 N.E.) overturned and the plaintiffs injured there- , taken a human life into his custody, although by. The court held that the act of the de- without reward, he is discharged from liability fendant in acceding to the request of the if he bestows in the preservation of that life no plaintiff's possessed none of the elements of more than that degree of care which even the a contract, and involved no elements of an

most inattentive and thoughtless take of their invitation so as to bring the case within the lessen the sanctity of human life. I can find no

own concerns? Such a doctrine would greatly rule of law licable to passenger upon

case in any book which supports it. The derailway train or a hired bus, or to cases of fendant was under a higher obligation of care express or implied invitation; that the legal towards the wayfarers on the public streets, status of the plaintiff's was that of licensees, towards whom he stood in no relation of conto whom the only legal duty imposed on the fidence, as he did towards the plaintiff. The defendant was to refrain from doing any act correct principle applicable to the case is this, wantonly or willfully injurious. .

that 'if a man gratuitously undertakes to do a And in MacKenzie v. Oakley, 91 N. J. Law, thing to the best of his skill, when his situa

tion or profession is such as to imply skill, an €6, 108 A, 771, where the owner of an auto-omission of that skill is imputed to him as gross mobile invited another to occupy a seat in negligence.'

This must, however, be his automobile, it was held that the duty of said with the qualification that the word 'gross,' the owner was to exercise due care, and in the sense, is not used as expressing the anthat under the facts the rule of res ipsa lo- tithesis of a certain defined degree of care. It quitur was applicable.

is either used in the sense of 'culpable' or 'acIn Grabau v. Pudwill, 45 N. D. 423, 178 n. tionable,' or else it is a mere epithet.” W. 124, the court said:

In Rappaport v. Stockdale (Minn.) 199 N. "The plaintiff received no invitation to ride W. 513, it was held that one who had enupon the car. Yet the defendants knew all the gaged an automobile van to move his goods, time that he was upon the running board of the which he had assisted in loading, was not a car. He was in plain sight. He was a guest trespasser while riding in the van to the of the defendants, by sufferance. It is true that place where the goods were to be unloaded. be was a gratuitous guest, but this alone is not The plaintiff not being a trespasser, the sufficient to relieve defendants from at least the exercise of ordinary care for his safety. In

court said: fact, we can see but little difference between de "Such being the argument and concession, it fendants' duty toward him as a gratuitous guest, is not necessary to consider whether any nice after they acquired full knowledge of his pres- | distinction should be made as to plaintiff being ence on the running board, than if they had, in an invitee or mere licensee. In either event the the first instance, invited him as their guest.” right of recovery would have to be predicated

in this case upon active negligence of the driver The Supreme Court of West Virginia, re

in the operation of the van after knowledge that ferring to that case, said:

plaintiff was riding thereon. Some courts hold “In that case the evidence impliedly showed that as to one riding even as an invitee there is invitation to ride by the owner, from whom the

no duty of the driver or owner except to reduty arose to observe ordinary care not to in- frain from wanton or gross negligence. Massajure the invitee: even a trespasser is entitled to

letti v. Fitzroy, 228 Mass. 487, 118 N. E. 168, this protection.” Christie v. Mitchell, 93 W. L. R. A. 1918C, 264, Ann. Cas. 1918B, 1088, Va. 200, 116 S. E. 715, 23 N. C. C. A. 306.

may be said to be the leading case of the courts

so holding. However, the trend of the deciThe statement that “even a trespasser is sions in most of the states is to the effect that entitled to this protection" may not be abso- towards a person invited to ride in a private lutely correct as an abstract statement of such vehicle owes the duty to refrain from do

vehicle, though held a licensee, the driver of But the court doubtless had in ing any negligent acts by which the danger of mind a case of a helpless trespasser, where riding upon the conveyance is increased or a his danger was known to the defendant, as new danger created. In other words, he must was the fact in the North Dakota case and drive with ordinary care." in Davidson v. Pittsburg, etc., R. Co., 41 W. Va. 407, 23 S. E. 593, which was cited in

And referring to Mazey v. Loveland, 133 support of the statement.

Minn, 210, 158 N. W. 44, L. R. A. 1916F, 279, In Siegrist v. Arpot, 10 Mo. App. 197, where which related to an invitee upon real esthe defendant's servant had knowingly re-tate, the court said such cases were not in ceived the plaintiff into a carriage driven by point. him, and where the jury had been instruct [3, 4] It seems to us that the only sensible ed there could be no recovery in the absence and humane rule is that an owner and driver of gross negligence, the cause was reversed of an automobile owes a guest at sufferance because of the giving of this instruction, the the duty of using reasonable care so as not to

injure him. The rule as to trespassers and "In the first place, there are no degrees of licensees upon real estate, with all its nicenegligence known to the law where the subject ties and distinctions, is not to be applied to of the bailment is a human life. Any negligence one riding in an automobile at the invitaunder such circumstances is culpable, and may tion of, or with the knowledge and tacit con

Can it be said sent of, the owner and operator of the autofor a moment that, where one has voluntarily mobile. A trespasser and licensee going up

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son transported resulting from negligence, 1 of the driver or owner of the machine creates whether the service was for compensation or no exception to the general rule. The driver of was gratuitous. (2) The duty of the owner

a motor vehicle is under obligation of exercising of an automobile to the occupant of the car

reasonable care, not only for the safety of peis to exercise reasonable care in its opera- safe transportation of his guests and other pas

destrians and other travelers, but also for the tion not to unreasonably expose to danger sengers in the machine. The express or imand injury the occupant by increasing the plied duty of the owner and driver to the occuhazard of the method of travel, but he must pant of the car is to exercise reasonable care in exercise the care and diligence which a man its operation, and not unreasonably to expose of reasonable prudence engaged in like busi- him to danger by increasing the hazard of that ness would exercise for his own protection method of travel.

Failing in this duand the protection of his family and prop-ty, he will be liable to the occupant in the car erty.

for injuries which are the result of such careOn the second appeal, Galloway v. Per-lessness or lack of diligence." kins, supra, the rule as stated on the former

The rule announced is followed and apappeal was reaffirmed; the court saying:

proved in Hemington v. Hemington, supra. "It does seem to be a harsh or hard rule In Pigeon v. Lane, supra, it was held that which makes the carrier or host liable to the as to the licensee the owner of the vehicle passenger or guest as for injury or death, in could be held liable for his “active neglithe absence of gross negligence or wantonness, gence" which would include his negligent especially when the passenger or guest is treat acts by which the danger was increased, or ed by the carrier or host, just as the latter himself is treated, and when both are injured

a new danger created, while the plaintitr

was riding under such license. by the same accident, as in this case. If this be so, the reply is: The law is so written, and

In Dickerson v. Connecticut Co., 98 Conn. cannot and should not be changed to meet hard 87, 118 A, 518, where a guest was injured cases; such instability would make shipwreck while riding in an automobile, the defendof the law."

ant insisted that "active negligence" was the

test of his liability. Pigeon v. Lane was exAnd, after calling attention to the fact plained; the court saying the term “active that it had been held that a gratuitous car- negligence” meant no more than want of orrier of goods, like a gratuitous bailee of

dinary care. goods, was not liable to the owner of the

A few jurisdictions have held that as begoods, in the absence of gross negligence, it tween an invitor and invitee in case of grawas held that the owner and driver of an au- tuitous transportation the driver of the vetomobile who undertakes to transport anoth- hicle must be guilty of gross negligence be. er gratuitously is liable for injuries to such fore he can be held liable for an accident. person, notwithstanding the rule as to the See Massaletti v. Fitzroy, 228 Mass. 487, 118 carriage of goods gratuitously by one not a N. E. 168, L. R. A. 1918C, 264, Ann. Cas. common carrier. Referring to the evidence 1918B, 1088, 18 N. C. C. A. 690. But in jurisin that case the court said:

dictions like Indiana, where there are no de“It was not necessary to a recovery that de- grees of negligence, the doctrine of gross fendant himself should have expressly invited negligence is not applicable. intestate to ride in the car. The deceased was There are also a few cases holding that a clearly not a trespasser, and was expressly in-person riding in an automobile for his own vited by one of the parties in the automobile, accommodation, and gratuitously, cannot and his presence in the car was known and ac- hold the driver liable, unless the latter is ceded to by the defendant. The duty of defendant not to injure the deceased was therefore the guilty of a wanton or intentional wrong. same as if he had erpressly invited deceased to

See Crider V. Yolande Coal, etc., Co., 206 ride with him * Under all the evidence Ala. 71, 89 So. 285, where the court, in speak. there can be no reasonable doubt that deceased ing of one who was permitted to ride in a was a passenger in the automobile, and that the motor truck as an accommodation, and gradefendant owed him the duty which he owed tuitously, said: any other passenger therein, and this whether

"He was at best a or not he was the defendant's expressly invited

mere licensee, and asguest." (Our italics.)

sumed all the risks of carriage except such as

might result from wanton or intentional wrong To the same effect see McGeever v. 0' or a failure to exercise due care to avert inByrne, supra.

jury after his danger became apparent." This rule is stated in Huddy on Automobiles (āth Ed.) 8 678, as follows:

And in Lutvin v. Dopkus, 94 N. J. Law, “When the occupant of an automobile is in-actions were members of a social organiza

64, 108 A. 862 (two cases), the parties to the jured through the operation of the machine, and it is shown that the driver was negligent and tion, which held a celebration at Staten Isthe occupant was not guilty of contributory

land. The defendant, residing at Staten negligence, it is clear that the latter can main- | Island, and 'being the owner of an automotain an action against the driver and recover bile, was solicited by the plaintiffs to take compensation for injuries. The fact that the them to the picnic grounds and return in his occupant was a guest or gratuitous passenger automobile. On the return trip the car was

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