
    MARGARET CAULFIELD v. PETER McGIVERN.
    
    January 31, 1936.
    No. 30,687.
    
      Ryan, Ryan & Ryan, for appellant.
    
      F. G. M'cGwern and Barron & Barnard, for respondent.
    
      
      Reported in 265 N. W. 24.
    
   Per Curiam.

In a suit for damages to recover for injuries receNed in an automobile accident AAdiere the plaintiff ivas a passenger and the defendant the driver of the car in Avhich she was riding, plaintiff had a verdict, and from an order denying defendant’s motion for judgment or a neAV trial he has appealed to this court.

The principal question presented is Avhetlier or not there is sufficient evidence to justify submission to a jury of the question of defendant’s negligence. He also assigns error on the court’s charge in the submission to the jury of the question AAdiether the defendant was traAreling at an unreasonable rate of speed, proximately causing the accident.

The defendant was driving easterly on highway No. 2 on the evening of June 8, 1933. Plaintiff and another woman were riding with him in the car. The road upon Avhich they Avere driving Avas about a year old, and the shoulders were still soft. The middle part of the road had been given a dust coat of oil but had not been covered with tarvia. The Avidth of the oiled part Avas from 35 to 40 feet, and of the entire roadbed, including shoulders, 40 to 50 feet. It had been raining steadily all of the forenoon and until two o’clock in the afternoon of that day. There Avere Avashouts along the sides of the road, but the defendant claims that he had not seen any. He was 63 years old but had driven a car only about 500 miles. Just before the accident to his car he passed a car driven by a man named Adams. According to Adams’ testimony the Adams car was being driven betAveen 25 and 30 miles an hour. Defendant estimated the speed of the Adams car at 15 miles an hour and his own in passing at between 25 and 30 miles an hour, but gauged speed by the passing landscape and not by the speedometer. After passing Adams’ car defendant’s car struck a Avashout on the north side of the road and skidded all the way across the oiled portion of the road and turned over twice after leaving the highway on the south side. After the accident one tire was found to be flat. The evening was clear, the visibility Avas good, and we think it Avas a question for the jury whether the defendant was guilty of negligence in driving so that his wheels struck the washout and also in going at the speed which the jury were justified in finding that he traveled, under the road conditions as they were at that time. There is no evidence that the fiat tire caused the accident or that it occurred prior to striking the washout. On the evidence the jury might find that it went out when the car struck the Avashout or when it turned over.

The court submitted to the jury the question of the reasonableness of the defendant’s speed, and on that account the defendant requested that the statutory rule should also be submitted. Although the record is silent as to this request, the defendant’s counsel, with commendable candor and fairness, admits it. Even without such suggestion from defendant, we think the court would have been justified by all the circumstances in stating to the jury the statutory rule. If the jury believed that Adams’ car ivas going between 25 and 30 miles an hour, and also believed that the defendant was traveling at approximately twice Adams’ speed, it might well believe that defendant was going more than 45 miles per hour. If it did so believe, the prima facie presumption of unreasonable speed was raised by the statute. To these estimates of speed there were added the circumstances of the skidding and the number of times which the car turned over at the end of the skid, from which the jury might well believe that the speed was in excess of 45 miles per hour.

The order appealed from is affirmed.  