On defendant's rule to show cause.
For the plaintiffs, Samuel T. French and William I. Garrison.
For the defendant, Cole & Cole.
Before Gummere, Chief Justice, and Justices Parker And Case.
The opinion of the court was delivered by
PARKER, J. The two cases arose out of the same accident and were tried together. Yanco and the deceased Williams were riding in Thon's car, all three being on their way home from a duck-hunting expedition. The defendant was driving at high speed, despite the protest of both his passengers, according to the testimony of Yanco, when the left wheels went off the concrete on the sand shoulder and the car capsized. Yanco was injured but not severely, and Williams died the same night of his injuries. There was a verdict in
favor of Yanco for $500, and in favor of the administrator for $6,000. The reasons assigned in each case in support of the rule are: (1) Verdict against the weight of evidence. (2) Verdict excessive. (3) Verdict result of passion, prejudice, &c., which is substantially the same as No. 1. (4) Refusal to direct a verdict for defendant. (5) Charge on the question of joint enterprise.
In support of reasons 1 and 3 and probably also of 4, these points are argued:
A. That plaintiffs were mere licensees, and in consequence the defendant owed them no duty of care, but only to abstain from willful injury. We have read the evidence carefully and are of opinion that the jury were fully justified in a finding that the deceased Williams and the living plaintiff were invited guests in defendant's car, and consequently that defendant owed each of them a duty of care.
B. That defendant was not guilty of negligence. On this point we think the evidence was plenary to the contrary.
C. That the two passengers were guilty of contributory negligence. This raises the question, which is of frequent occurrence in this class of cases, what a passenger in a closed car ought to do in self-protection when it appears that the car is being run negligently and at a dangerous speed. It is in evidence that Yanco asked defendant to take his time, and that he said, "who's driving this buggy?" and that Williams cautioned him in a similar vein a moment later. No one would reasonably claim that the passengers should have jumped out, and we think no sensible jury would say that one or both should have seized the wheel. The court very properly charged that contributory negligence is an affirmative defense, and that the jury should ask themselves whether the occupants of the car or either of them could by the exercise of reasonable care, have prevented the ...