JONES, Circuit Judge.
This is another guest statute case. From a verdict and judgment for the plaintiff, and order denying defendant’s motion for judgment notwithstanding the verdict, or, in the alternative, for a new trial, the defendant appeals.
Defendant’s first assignment of error is based on his contention that the evidence is insufficient to establish wilful and wanton misconduct on the part of the defendant.
The one-car accident occurred shortly before midnight on April 1, 1967 on a graveled township road between Mitchell and Loomis in Davison County that was being used as a detour. In the car were defendant, the driver, who was 19, the plaintiff and a friend, James Roberts, both age 18. All three were students at the University of South Dakota and members of the same social fraternity, and were at their respective homes for a spring vacation.
The defendant and James Roberts, both from Yankton, had left Yankton about 7:30 p. m. to attend a dance in Tyndall. Before leaving Yankton they purchased a six-pack of beer. After spending some time in Tyndall and buying another six-pack of beer, they decided to go to Mitchell to visit the plaintiff, who was at his parents’ home in Loomis, about nine miles northwest of Mitchell. They arrived in Mitchell about 11 p.m.,. and called the plaintiff at his home. By this time defendant and Roberts had each consumed four cans of beer. They drove north from Mitchell and then west to Loomis on an oiled highway.
The night was dark, misty, rainy and cold. The plaintiff and his father had returned home about 11 p. m. from sweeping ice off the top of the wings of their Piper Cub airplane. The defendant had been using his windshield wipers most of the evening. The weather just after the accident was described as raining, snowing and sleeting.
The defendant and Roberts picked up the plaintiff at his home. Leaving Loomis the defendant was driving, Roberts [359]*359was sitting in the middle and the plaintiff was sitting on the right side of the front seat. They decided to take a different, shorter route back to Mitchell. They proceeded south from Loomis on an oiled road for approximately a mile and one-half until they came to a barricade across the road and a detour sign directing them east on a graveled road. A mile east of the first barricade was another detour sign directing traffic south. This road was also graveled and it was described as “sloshy”. The bridge which was the scene of the accident was about three-quarters of a mile south of this intersection. After they turned south, the defendant was driving between 50 and 60 miles per hour.
At this point, the plaintiff testified as follows:
“Q What, if anything, did you say to Richard then and there?
A We turned and started south; just as he turned south, I said, ‘There is a hill coming up and a series of curves, and a bridge that sits at a real bad angle, and that we would have to slow down.’
Q What did he say?
A He didn’t respond at all. He didn’t say anything.
Q Did he slow up his car?
A No.”
Proceeding south they came to a curve sign indicating a right turn. A red flag was attached to the sign. This was about 1,200 feet from the bridge. The plaintiff testified to another warning being given the defendant at about this point, as follows:
“A Well, as we proceeded down the road, heading south, perhaps a quarter or half mile away from the bridge, I said, ‘Rich, you will have to slow down.’ ”
Since the defendant'did not slow down, this warning was not heeded.
[360]*360About 800 feet from the bridge was a “Narrow Bridge” sign with a red flag attached to it. About 600 feet from the bridge was a sign stating a speed limit of 25 miles per hour, again with a red flag attached. This was at approximately the beginning of the right curve. About 150 feet from the bridge, the road turned abruptly to the left. This turn was not marked. As the defendant went into this turn, at a speed which the plaintiff estimated at 50 to 60 miles per hour, he lost c'ontrol of the car and slid sideways about 150 feet into the northwest corner of the bridge.
An examination of the photographs of the accident scene indicates that the locale of the accident could be generally described as an “S” curve with a bridge sitting in the middle of the “S”.
The South Dakota guest statute states:
“SDCL 32-34-1. Guest statute — Willful and wanton misconduct required. — No person transported by the owner or operator of a motor vehicle as his guest without compensation for such transportation shall have cause of action for damages against such owner or operator for injury, death, or loss, in case of accident, unless such accident shall have been caused by the willful and wanton misc'onduct of the owner or operator of such motor vehicle, and unless such willful and wanton misconduct contributed to the injury, death, or loss for which the action is brought.”
The first case construing this statute, Melby v. Anderson, 64 S.D. 249, 266 N.W. 135, laid down the general principles of law which have been consistently applied to all guest statute cases since 1936:
“That to create liability under the statute there must be (1) knowledge of a situation requiring the exercise of ordinary care and diligence to avert injury to another; (2) ability to avoid the resulting harm by ordinary care and diligence in the use of the means at hand; (3) omission to use such care and diligence [361]*361to avert the threatened danger when, to the ordinary mind, it must be apparent that the result is likely to prove disastrous to another.”
See also Coon v. Williams, 4 Mich.App. 325, 144 N.W.2d 821.
The meaning of this law is well established by our decisions but difficulty is often encountered in its application. Cluts v. Peterson, 79 S.D. 462, 113 N.W.2d 273. Proof of wilful and wanton misconduct depends upon the facts in each particular case. Elfert v. Witt, 73 S.D. 4, 38 N.W.2d 445. As stated in Allen v. McLain, 74 S.D. 646, 58 N.W.2d 232,
“Of course no two fact situations are identical, and the cases are not too helpful except for giving an over-all picture of the application of the rule.”
See also Tien v. Barkel, 351 Mich. 276, 88 N.W.2d 552; Anderson v. Lippes, 18 Mich.App. 281, 170 N.W.2d 908.
Counsel for the defendant strenuously argues that the defendant in this case operated his car this evening without incident or accident until he skidded on the last curve, that he merely failed to negotiate an unmarked curve on an unfamiliar road, and that while he .might be negligent, he lacked the affirmatively reckless state of mind referred to in Granflaten v. Rohde, 66 S.D. 335, 283 N.W. 153.
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JONES, Circuit Judge.
This is another guest statute case. From a verdict and judgment for the plaintiff, and order denying defendant’s motion for judgment notwithstanding the verdict, or, in the alternative, for a new trial, the defendant appeals.
Defendant’s first assignment of error is based on his contention that the evidence is insufficient to establish wilful and wanton misconduct on the part of the defendant.
The one-car accident occurred shortly before midnight on April 1, 1967 on a graveled township road between Mitchell and Loomis in Davison County that was being used as a detour. In the car were defendant, the driver, who was 19, the plaintiff and a friend, James Roberts, both age 18. All three were students at the University of South Dakota and members of the same social fraternity, and were at their respective homes for a spring vacation.
The defendant and James Roberts, both from Yankton, had left Yankton about 7:30 p. m. to attend a dance in Tyndall. Before leaving Yankton they purchased a six-pack of beer. After spending some time in Tyndall and buying another six-pack of beer, they decided to go to Mitchell to visit the plaintiff, who was at his parents’ home in Loomis, about nine miles northwest of Mitchell. They arrived in Mitchell about 11 p.m.,. and called the plaintiff at his home. By this time defendant and Roberts had each consumed four cans of beer. They drove north from Mitchell and then west to Loomis on an oiled highway.
The night was dark, misty, rainy and cold. The plaintiff and his father had returned home about 11 p. m. from sweeping ice off the top of the wings of their Piper Cub airplane. The defendant had been using his windshield wipers most of the evening. The weather just after the accident was described as raining, snowing and sleeting.
The defendant and Roberts picked up the plaintiff at his home. Leaving Loomis the defendant was driving, Roberts [359]*359was sitting in the middle and the plaintiff was sitting on the right side of the front seat. They decided to take a different, shorter route back to Mitchell. They proceeded south from Loomis on an oiled road for approximately a mile and one-half until they came to a barricade across the road and a detour sign directing them east on a graveled road. A mile east of the first barricade was another detour sign directing traffic south. This road was also graveled and it was described as “sloshy”. The bridge which was the scene of the accident was about three-quarters of a mile south of this intersection. After they turned south, the defendant was driving between 50 and 60 miles per hour.
At this point, the plaintiff testified as follows:
“Q What, if anything, did you say to Richard then and there?
A We turned and started south; just as he turned south, I said, ‘There is a hill coming up and a series of curves, and a bridge that sits at a real bad angle, and that we would have to slow down.’
Q What did he say?
A He didn’t respond at all. He didn’t say anything.
Q Did he slow up his car?
A No.”
Proceeding south they came to a curve sign indicating a right turn. A red flag was attached to the sign. This was about 1,200 feet from the bridge. The plaintiff testified to another warning being given the defendant at about this point, as follows:
“A Well, as we proceeded down the road, heading south, perhaps a quarter or half mile away from the bridge, I said, ‘Rich, you will have to slow down.’ ”
Since the defendant'did not slow down, this warning was not heeded.
[360]*360About 800 feet from the bridge was a “Narrow Bridge” sign with a red flag attached to it. About 600 feet from the bridge was a sign stating a speed limit of 25 miles per hour, again with a red flag attached. This was at approximately the beginning of the right curve. About 150 feet from the bridge, the road turned abruptly to the left. This turn was not marked. As the defendant went into this turn, at a speed which the plaintiff estimated at 50 to 60 miles per hour, he lost c'ontrol of the car and slid sideways about 150 feet into the northwest corner of the bridge.
An examination of the photographs of the accident scene indicates that the locale of the accident could be generally described as an “S” curve with a bridge sitting in the middle of the “S”.
The South Dakota guest statute states:
“SDCL 32-34-1. Guest statute — Willful and wanton misconduct required. — No person transported by the owner or operator of a motor vehicle as his guest without compensation for such transportation shall have cause of action for damages against such owner or operator for injury, death, or loss, in case of accident, unless such accident shall have been caused by the willful and wanton misc'onduct of the owner or operator of such motor vehicle, and unless such willful and wanton misconduct contributed to the injury, death, or loss for which the action is brought.”
The first case construing this statute, Melby v. Anderson, 64 S.D. 249, 266 N.W. 135, laid down the general principles of law which have been consistently applied to all guest statute cases since 1936:
“That to create liability under the statute there must be (1) knowledge of a situation requiring the exercise of ordinary care and diligence to avert injury to another; (2) ability to avoid the resulting harm by ordinary care and diligence in the use of the means at hand; (3) omission to use such care and diligence [361]*361to avert the threatened danger when, to the ordinary mind, it must be apparent that the result is likely to prove disastrous to another.”
See also Coon v. Williams, 4 Mich.App. 325, 144 N.W.2d 821.
The meaning of this law is well established by our decisions but difficulty is often encountered in its application. Cluts v. Peterson, 79 S.D. 462, 113 N.W.2d 273. Proof of wilful and wanton misconduct depends upon the facts in each particular case. Elfert v. Witt, 73 S.D. 4, 38 N.W.2d 445. As stated in Allen v. McLain, 74 S.D. 646, 58 N.W.2d 232,
“Of course no two fact situations are identical, and the cases are not too helpful except for giving an over-all picture of the application of the rule.”
See also Tien v. Barkel, 351 Mich. 276, 88 N.W.2d 552; Anderson v. Lippes, 18 Mich.App. 281, 170 N.W.2d 908.
Counsel for the defendant strenuously argues that the defendant in this case operated his car this evening without incident or accident until he skidded on the last curve, that he merely failed to negotiate an unmarked curve on an unfamiliar road, and that while he .might be negligent, he lacked the affirmatively reckless state of mind referred to in Granflaten v. Rohde, 66 S.D. 335, 283 N.W. 153. After the accident, the defendant stated that he had driven a gas truck for his father on gravel roads and that he could take the curves on those roads faster than most people could.
In determining whether the evidence in a guest statute case is sufficient to sustain the verdict of the jury on the issue of wilful and wanton misconduct, the question for this court always is, is the evidence such that a jury might find that to the ordinary mind it must have been apparent that the described conduct would in all probability (as distinguished from possibility) produce the precise result which it did produce and would bring harm to the plaintiff. Allen v. McLain, supra.
In determining whether the defendant’s conduct in a guest statute case constitutes wilful and wanton misconduct, great stress has been placed on the actual frame of [362]*362mind of the defendant. 8 Am.Jur. 2d, Automobiles and Highway Traffic, § 488, p. 56. This stress is proper in those cases in which the evidence establishes clearly the reckless state of mind of a defendant, as in Stoll v. Wagaman, 73 S.D. 186, 40 N.W.2d 393. But this stress can be misleading if it results in considering only the actual state of mind of the specific' driver to the exclusion of a consideration of his wilful conduct under the attending circumstances. Minick v. Englert, 84 S.D. 73, 167 N.W.2d 551. The driver who actually thinks that he can safely give his passengers a “thrill ride”, or who actually thinks that he can engage in “drag racing” without endangering his guests, or who actually thinks that because of his driving experiences he can safely disregard warnings and warning signs in obviously hazardous circumstances, cannot escape liability under the guest statute by establishing that in so doing he did not think that this conduct would probably (as distinguished from possibly) produce the precise result that it did produce and would bring harm to his guests.
In determining the defendant’s intent or state of mind in guests statute cases, this court has adhered to the so-called “external standard” since the Melby c'ase was decided in 1936. Using this external standard, the defendant’s mental attitude is established not by what he said nor even by what he may actually have thought, but rather by the attitude that an ordinarily prudent person would have had under all the attending circumstances. Espeland v. Green, 74 S.D. 484, 54 N.W.2d 465; Stevens v. Stevens, 355 Mich. 363, 94 N.W.2d 858.
The defendant strenuously argues that the fact that he was unfamiliar with the road negates any inference that he was guilty of wilful and wanton misconduct. However, we are unable to distinguish any difference between knowing of danger by reason of personal observations and knowing of danger by reason of prior warnings. In this connection, the warnings become important, not because they were disregarded, but because they gave the defendant knowledge of dangerous conditions ahead. Ignored warnings make a stronger case for wilful and wanton misconduct [363]*363when the driver is unfamiliar with the road than when he personally knows the road conditions ahead.
Viewing the evidence in a light most favorable to the plaintiff, as we are required to do, we believe that the evidence presents a jury question on the issue of whether or not the defendant’s conduct constituted wilful and wanton misconduct.
Here the defendant, on a dark and rainy night, was driving on a sloshy, gravel detour road with which he was unfamiliar. He disregarded and ignored the warnings of a guest who was familiar with the road, disregarded the warning signs and the red flags and operated his car at a speed of at least twice the posted speed limit. His conduct under the totality of the circumstances as they existed that night justified the trial court in submitting the case to a jury on the issue of wilful and wanton misconduct. Defendant’s conduct in this case is reasonably comparable to the conduct described in our prior cases of Wentzel v. Huebner, 78 S.D. 481, 104 N.W.2d 695, and Minick v. Englert, supra.
We are of the view that this case is illustrative of the court’s statement in Allen v. McLain, supra:
“* * * it is not simply the failure to negotiate one turn or the single item of speed but the whole attitude of the defendant and all of the circumstances and conditions confronting him at the time of and prior to the accident which make reasonable a finding of probability as distinguished from possibility of accident resulting from his conduct.”
In so determining, we do not suggest that the defendant’s conduct constituted wilful and wanton 'misconduct as a matter of law. Under the facts of his case, we would not have been disposed to have set aside a verdict for the defendant. Neither are we disposed to set aside plaintiff’s verdict.
The jury verdict for the plaintiff allowed him damages of $400,000, and the defendant asserts that this amount is excessive and seeks a new trial under SDCL 15-6-59(a) (5).
[364]*364When the defendant’s car struck the bridge, a piece of two-inch angle .iron went through the car door, entered plaintiff’s body at or slightly below his right hip, exited at his left buttocks and went into the car seat about a foot. The extent of the injury was not immediately apparent, but became apparent when an effort to pull the car away from the bridge resulted in pain to the plaintiff. When it was discovered that the plaintiff was impaled on this angle iron, a welder was summoned to the accident scene and he cut the angle iron away from the bridge. The car was then pulled from the bridge and the cutting torch was used to cut the hinges from the car door, so the door could be taken off the car and the plaintiff could be removed. The plaintiff was then taken to the hospital in an ambulance with the 30-inch section of angle iron through his body. It took about three hours after the accident to get the plaintiff to the hospital. The plaintiff was conscious during this period and was given two shots of Demerol for his pain.
At the hospital the plaintiff was given a general anesthetic. About 5 a. m. the angle iron was removed from his body and it was discovered that the angle iron had cut off the lower part of the plaintiff’s rectum and did extensive damage to the sphincter muscle. A c'olostomy and a cystostomy were then performed. Plaintiff’s hip and right leg were badly broken. About three weeks after the accident the plaintiff’s right leg was amputated high in the hip area at the site of the break because of gangrene infection. At the time of trial this stump had not yet healed completely. The plaintiff also had surgery on his left kidney to remove kidney stones. The right kidney was removed because of stones and associated infection caused by obstruction of a chronic nature. The injury also resulted in adrenal destruction and the plaintiff was placed on a cortisone treatment which will have to be continued for the rest of his life.
The plaintiff had six major operations performed on him and six or seven minor operations for the removal of tubes and the like. He received about 95 blood transfusions. He was hospitálized continuously from April 1, 1967 to the date of trial, November 18, 1968. At the trial his doctor estimated that he would be hospitalized for another four to six months. [365]*365After recuperating sufficiently to permit his release from the hospital in Mitchell, the plaintiff will require another month or six weeks of hospitalization in connection with the fitting of an artificial leg.
At the time of,the trial the plaintiff had incurred a hospital bill in excess of $37,000, which figure included $7,700 in drugs and medicines. His doctor bill to the time of trial was in excess of $2,000, the special nurses expense was $1,300. In addition, it was obvious that the plaintiff was certain to require very substantial additional outlays for medical expenses in the future.
The plaintiff at the time of the accident was an 18-year-old college student, maintaining slightly over a “B” average in his college studies and was in excellent health.
Because of the plaintiffs extensive injuries, adrenal destruction and kidney complications, his doctor’s prognosis for a satisfactory recovery was “guarded” at the time of trial.
The test employed by this court in determining when damages are excessive within the meaning of SDCL 15-6-59(a) (5) is contained in Schuler v. City of Mobridge, 44 S.D. 488, 184 N.W. 281:
“ ‘The damages, therefore, must be so excessive as to strike mankind, at first blush, as being, beyond all measure, unreasonable and outrageous, and such as manifestly show the jury to have been actuated by passion, partiality, prejudice or corruption. In short, the damages' must be flagrantly outrageous and extravagant, or the court cannot undertake to draw the line; for they have no standard by which to ascertain the excess.’ ”
This is also the test used in most jurisdictions. 22 Am.Jur.2d, Damages, § 366, p. 473.
This obviously creates an extremely difficult burden for anyone attempting to overturn a verdict on the ground of excessive damages. But the reason for the rule is sound. The jury and the trial judge have seen the plaintiff and noted his manner of testifying, his intelligence, his physical con[366]*366dition, and have heard first hand the testimony on the subject of damages. The appellate court does not have this opportunity and, therefore, is not in as good a position to accurately assess the plaintiffs damages.
The trial judge in passing upon the reasonableness of the jury verdict has had the benefit of not only hearing and observing the same things as the jury, but also has had the opportunity to observe the jury itself for signs of passion and prejudice, in addition to considering the amount of the verdict. Weidner v. Lineback, 82 S.D. 8, 140 N.W.2d 597.
The jury’s verdict in this case is very substantial, but so are the injuries and the resulting damage to the plaintiff. We have reviewed the amounts awarded in other reasonably similar cases as collected in 11 A.L.R.3d 9 and 12 A.L.R.3d 475. Reviewing these cases, and bearing in mind the declining value of the dollar, pursuant to Ross v. Foss, 77 S.D. 358, 92 N.W.2d 147, we are not persuaded that this verdict is excessive under the Schuler rule.
We have examined the defendant’s other assignments of error and find them without merit.
The judgment is affirmed.
HANSON and BIEGELMEIER, JJ., concur.
HOMEYER, J., dissents.
RENTTO, J., concurs in dissent.
JONES, Circuit Judge, sitting for ROBERTS, P. J., disqualified.