The complaint avers that plaintiff is the widow of Sig McKeen on whom she depended for support; that she is the administratrix of his estate; that in July, 1917, McKeen was a guest of defendant in an automobile owned and driven by him; that by the gross negligence of defendant the automobile turned over and killed McKeen. The jury found a special verdict on which judgment was given against defendant for $3,000. The verdict finds that McKeen was a guest in defendant’s car when it overlurned; that defendant was intoxicated and his intoxication contributed to the overturning of the car. The speed of the car, when making a turn on the road shortly before the accident was 30 miles an hour, and it was 15 miles at the time of the accident, and the speed contributed to the overturning of the car. Defendant was intoxicated and McKeen knew it.
Questions submitted to jury:
Q. Did McKeen know or have reason to believe there was danger in riding in the car?
Page 134Q, If he bad reason to believe there was danger, did he have time and opportunity, without danger, to get out of the car ?
A. No.
Q. In driving the car did defendant use ordinary care?
A. No.
Q. What was the proximate cause of the accident ?
A. Keckless driving by defendant.
Q. In what sum has the plaintiff been damaged ?
A. $3,000.
The defense is that the deceased was guilty of contributory negligence. At the time of the accident defendant was driving a high-power car in which the deceased and the several others were all “gloriously drunk together.”
Ira Pellett testifies: They crossed a bridge and then defendant commenced to speed.
Q. Did anybody try to get out of the car shortly after you crossed the bridge?
A. Yes, sir. . Mr. Johnson was hollering: “For God’s sake stop and let me out of this car,” and Sig McKeen said: “Take me back, I don’t want to go like this.” Defendant did not stop. He speeded up a little. He kept increasing the speed all the time after he started down the road.
Q. How fast was the car going as it approached within 100 or 200 feet of the turn ?
A. Why from 35 to 45 miles.
The testimony covers 420 pages. There is considerable conflict. Yet the verdict is well sustained. McKeen came to his death by means of reckless driving and gross neglect of defendant, an'd six others narrowly escaped death. Defendant can urge no defense only that he was drunk, and deceased knew it, and in getting into the automobile deceased was guilty of negligence. However, the jury finds that Sig McKeen did not know or have reason to believe that there was danger in riding on the car. The fact that a person is more or less intoxicated does not indicate that he will act the part of a madman. 'McKeen seeing five or six other persons on the car would naturally conclude that they were not all so foolish as to go on a car
By statute every person is responsible, not only for his wilful acts, but also for an injury occasioned to another by the want of ordinary care in the management of his property or person, except so far as tho latter has wilfully or by want of ordinary care brought the injury upon himself. Now in this case it will not be contended that the deceased wilfully brought the injury upon himself or that he was guilty of more negligence than the several other persons on the car. It is true the guests were all more or less under the influence of liquor, but their condition was neither the direct nor proximate cause of the car turning over on them. As the jury found, the proximate cause of the accident was the reckless driving by defendant, and the reckless driving was not in any manner, caused by the condition of deceased.
It is urged plaintiff cannot recover if the deceased participated in the use of intoxicating liquor which resulted in defendant’s incapacity to operate the car. But the evidence does not show, and there is no presumption or finding, that the defendant had not capacity to safely operate tho car. The accident resulted not frorp the lack of capacity, but from the lack of care and a desire to do a dare-devil stunt and to frighten the guests. They cried for him to stop
But the more they cried, Whoa!
More he said, Let her go!
And the good car went faster and faster.
The verdict is moderate and in accordance with the testimony.
Affirmed.