Hall v. Hall , 63 S.D. 343 ( 1935 )

I concur in the holding arrived at by the foregoing opinion with reference to the extent of the duty to drive skillfully and competently which the driver of an automobile owes to a gratuitous passenger therein, though I think it is to some extent a departure from some of the previous decisions of this court. The matter arising prior to the effective date of chapter 147, Laws 1933, the interpretation or effect of that statute requires no consideration. I believe the rule announced to be equivalent in substance and effect to that set forth in the A.L.I. Restatement of the Law of Torts, § 323, in the following language: "One who gratuitously renders services to another, otherwise than by taking charge of him when helpless, is subject to liability for bodily harm caused to the other by his failure, while so doing, to exercise with reasonable care such competence and skill as he possesses or leads the other reasonably to believe that he possesses."

In the instant case respondent had often ridden with appellant and was fully informed from his own observation (as he himself admits) as to how much skill and competence as an automobile driver appellant possessed. Consequently her invitation to him to ride with her should not be deemed to represent or reasonably lead him to believe that she possessed average skill or indeed any particular degree of skill or competence other than he had previously observed. Under these circumstances, her sole duty to him was to exercise with reasonable care such competence and skill as she in fact possessed.

In this case the most troublesome problem is the application of the law to the facts. The final result must be determined according to the solution of a fact question, which may be thus stated: "Did this accident occur because of lack of competence or skill on the part of appellant, or did it occur because appellant negligently failed to exercise that degree of competence and skill of which she was actually possessed?"

It is frequently quite difficult to distinguish between lack of skill and carelessness in exercising a possessed skill. The point is considerably discussed in the several opinions in the Wisconsin case of Hensel v. Hensel Yellow Cab Co. (1932)209 Wis. 489, 245 N.W. 159. See, also, Eisenhuth v. Eisenhuth (1933)212 Wis. 467, 248 N.W. 440, 250 N.W. 441, 91 A.L.R. 549; Grover v. Sherman (1934) 214 Wis. 152, 252 N.W. 680.

Appellant here had observed this ridge of gravel to some extent at least; she knew it was there; she said that she had crossed similar ridges before without difficulty. She formed at least some sort of a judgment that she could safely cross this one and deliberately attempted so to do, not expecting to have an accident. On the other hand, she says also that she did not consider the matter for any length of time before starting across, but started rather on a sudden impulse of her own. It seems to me that reasonable men might differ in opinion as to whether this record viewed as a whole presents a case of lack of ordinary care in observation before forming a judgment (in which event there would be liability), or whether it presents a case of observation made with ordinary care and a judgment formed thereon (and action taken accordingly), which judgment a better skilled or more competent driver might not have formed upon the same observed facts (in which event there would be no liability).

I believe, therefore, that the matter is for the jury under proper instructions, and consequently I think the opinion of Judge RUDOLPH correctly disposes of the appeal.