Forsyth v. Joseph

450 P.2d 627



In evaluating the evidence in a case involving the automobile guest statute bearing upon the failure of the passengers to protest, its relevancy in the decision does not concern a defense of contributory negligence; its relevancy is its bearing upon the attitude or mental state of the host-defendant.


This is a suit for the alleged wrongful death of plaintiff's decedent, and it arises out of a collision of motor vehicles belonging to and being driven by the defendants. The defendant automobile driver with the decedent as a passenger turned into a highway lane and failed to see the oncoming truck. The decedent was killed. There was evidence that the driver's car had a dirty windshield. The trial court held that the driver's negligence in failing to see the approaching vehicles was not, under the circumstances, sufficient to evidence a state of mind evincing utter irresponsibility or conscious abandonment of any consideration for the safety of her guest as required for a liability finding under the guest statute. The defendant truck driver attacked the trial court's findings that he was operating his truck when he should have known that the brakes were defective. The court reversed the judgment against the automobile driver and dismissed the complaint as to her. The court entered a judgment against the truck driver for the damages found.


Can automobile driver be held liable for contributory negligence in decedent's death?




The care which automobile driver exercised upon seeing the approaching truck on the airport highway; the slowness of her speed in making her turn and in proceeding toward the service station; her purpose in going to the service station to have her windshield cleaned; her failure to see, and, thus, her unawareness of the approaching vehicles; all indicate a mental state contrary to that of utter irresponsibility or a conscious abandonment of any consideration for the safety of her passenger. The fact that the passenger at no time protested or said anything to alert the driver to any possible danger, until the moment of impact, is also relevant upon her mental state. 

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