ROBERTS, fudge.
Plaintiff was injured on June 26, 1962, while on the golf course of the Mitchell Country Club near Mitchell. When the golf cart on which plaintiff was riding ran out of gasoline, defendant invited plaintiff and his golf partner to ride on the hood of the golf cart driven by him. Plaintiff charged defendant with negligence in operation of the golf cart causing plaintiff to be thrown to the ground. The record shows that the golf cart is a three-wheeled vehicle propelled by a gasoline motor; it is equipped with two seats, foot and hand brakes, conventional steering wheel and a rack for golf clubs. Seated at the right of defendant prior to the accident was George Millen and plaintiff and Robert Buche were sitting on the hood. The jury returned a verdict for plaintiff in the amount of $25,000. Motion for new trial was denied and defendant appeals.
The amended complaint alleges:
"That the plaintiff, without payment of compensation, was being transported upon said golf cart upon said golf course, and while plaintiff was riding upon the right front corner of said golf cart, the defendant carelessly and negligently turned said golf cart to the left while said cart was moving forward, thereby throwing plaintiff to the ground with great force and violence.
"That as the direct and proximate result of said negligence and said carelessness on the part of said defendant, plaintiff sustained a broken ankle and other injuries; that said injuries caused pain and necessitated medical and hospital care; that the fair and reasonable value of such medical and hospital attention, including physical therapy, amounted to approximately $1,000; that plaintiff was unable to take care of his business by [618]*618reason of said injuries, is partially incapacitated by reason of said injuries, and plaintiff has been informed and believes and therefore alleges that the said injuries to his ankle and leg are permanent and will always partially incapacitate him and prevent him from doing his work and taking care of his business in the future; further, that said injuries will continue to cause him pain and suffering in the future."
Defendant's answer asserted failure of the complaint to state a claim upon which relief could be granted, denied generally the allegations of the complaint and averred the defenses of assumption of risk and contributory negligence.
Defendant prior to trial made a motion to dismiss the amended complaint stating that since it appears from its allegations that defendant was operating a "motor vehicle" within the meaning of the guest statute and that plaintiff was riding thereon as the guest of defendant without compensation it follows that in the absence of allegation that the conduct complained of was something more than ordinary negligence the complaint does not state a claim upon which relief can be granted. One of the grounds also urged in support of this position in defendant's motions for directed verdict and for new trial was that plaintiff failed to prove that plaintiff's injury was caused by willful and wanton misconduct of the defendant.
SDC 44.0362 reads as follows:
''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 misconduct of the owner or operator of such motor vehicle, and unless such willful and wanton misconduct contributed to the injury, death, or lass for which the action is brought; and no person so transported shall have such cause of action if he has willfully or by want of ordinary care brought the injury upon himself."
[619]*619The trial court concluded that the golf cart at the time of the accident was not a "motor vehicle" within the meaning of this statute; that these words refer to a vehicle which operates upon a public highway. The guest statute is contained in Chapter 44.03 of the South Dakota Code of 1939. SDC 44.0301 contains definitions of terms in the chapter that are controlling unless as therein provided "the context otherwise plainly requires." Sub. (1) of this section defines "vehicle" as follows: "(E)very device in, upon, or by which any person or property is or may be transported or drawn upon, a public highway, excepting devices moved by human power or used exclusively upon stationary rails or tracks; provided that for the purposes of this chapter, a bicycle or a ridden animal shall be deemed a vehicle" (Emphasis added), Sub. (2) of the same section defines "Motor Vehicle" as follows: "(E)very vehicle, as herein defined, which is self-propelled". If a motor driven golf cart were being operated upon a public highway for the purpose of transporting persons or property, it would undoubtedly be considered a "motor vehicle" within these statutory provisions. They contain reference to vehicles by which any person or property "may be" transported or drawn upon a public highway. The provisions of SDC 44.03 are regulatory in nature governing the use of vehicles upon public highways and the conduct of owners and drivers of vehicles operated thereon. The language in question refers to the type or class of self propelled vehicles primarily designed for transportation of persons or property on public highways. We agree with the holding of the Supreme Court of Wisconsin in Nelson v. Ohio Casualty Insurance Co., 29 Wis.2d 315, 139 N.W.2d 33, to the effect that a highway safety statute was not applicable to a class of motor propelled vehicles so designed that they might never be used for transporting persons or property upon a public highway and that such a motor vehicle is not within the terms of the statute unless being operated upon a public highway at the time of an accident. We hold that a motor driven golf cart while being operated on a golf course is not a "motor vehicle" within the meaning of the guest statute.
In the absence, therefore, of statutory provisions otherwise providing, there existed the common law relationship between the parties of guest and host. This court has held that [620]*620under such circumstances it is the duty of the host to exercise ordinary care to prevent injury to his guest. Barger v. Chelpon, 60 S.D. 66, 243 N.W. 97; Holdhusen v. Schaible, 60 S.D. 275, 244 N.W. 392. In other words, with respect to the operating conditions of the vehicle which are known or should be known to the guest there is no actionable breach of duty on the part of the host or operator of the vehicle; the duty of the host extends only to refrain from increasing the danger or creating a new danger. Petteys v. Leith, 62 S.D. 149, 252 N.W. 18; Hall v. Hall, 63 S.D. 343, 258 N.W. 491; Wakefield v. Singletary, 76 S.D. 417, 80 N.W.2d 84.
Defendant contends that plaintiff assumed the dangers incident to the position which he took on the hood of the golf cart; that there was no handle or other part of the vehicle which he could readily grasp and no place to brace his feet to prevent being thrown from the vehicle traveling over bumpy stretches of the golf course or upon the turning of the highly maneuverable three-wheeled vehicle; and that knowing and appreciating the hazards involved plaintiff did not exercise ordinary care for his own safety.
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ROBERTS, fudge.
Plaintiff was injured on June 26, 1962, while on the golf course of the Mitchell Country Club near Mitchell. When the golf cart on which plaintiff was riding ran out of gasoline, defendant invited plaintiff and his golf partner to ride on the hood of the golf cart driven by him. Plaintiff charged defendant with negligence in operation of the golf cart causing plaintiff to be thrown to the ground. The record shows that the golf cart is a three-wheeled vehicle propelled by a gasoline motor; it is equipped with two seats, foot and hand brakes, conventional steering wheel and a rack for golf clubs. Seated at the right of defendant prior to the accident was George Millen and plaintiff and Robert Buche were sitting on the hood. The jury returned a verdict for plaintiff in the amount of $25,000. Motion for new trial was denied and defendant appeals.
The amended complaint alleges:
"That the plaintiff, without payment of compensation, was being transported upon said golf cart upon said golf course, and while plaintiff was riding upon the right front corner of said golf cart, the defendant carelessly and negligently turned said golf cart to the left while said cart was moving forward, thereby throwing plaintiff to the ground with great force and violence.
"That as the direct and proximate result of said negligence and said carelessness on the part of said defendant, plaintiff sustained a broken ankle and other injuries; that said injuries caused pain and necessitated medical and hospital care; that the fair and reasonable value of such medical and hospital attention, including physical therapy, amounted to approximately $1,000; that plaintiff was unable to take care of his business by [618]*618reason of said injuries, is partially incapacitated by reason of said injuries, and plaintiff has been informed and believes and therefore alleges that the said injuries to his ankle and leg are permanent and will always partially incapacitate him and prevent him from doing his work and taking care of his business in the future; further, that said injuries will continue to cause him pain and suffering in the future."
Defendant's answer asserted failure of the complaint to state a claim upon which relief could be granted, denied generally the allegations of the complaint and averred the defenses of assumption of risk and contributory negligence.
Defendant prior to trial made a motion to dismiss the amended complaint stating that since it appears from its allegations that defendant was operating a "motor vehicle" within the meaning of the guest statute and that plaintiff was riding thereon as the guest of defendant without compensation it follows that in the absence of allegation that the conduct complained of was something more than ordinary negligence the complaint does not state a claim upon which relief can be granted. One of the grounds also urged in support of this position in defendant's motions for directed verdict and for new trial was that plaintiff failed to prove that plaintiff's injury was caused by willful and wanton misconduct of the defendant.
SDC 44.0362 reads as follows:
''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 misconduct of the owner or operator of such motor vehicle, and unless such willful and wanton misconduct contributed to the injury, death, or lass for which the action is brought; and no person so transported shall have such cause of action if he has willfully or by want of ordinary care brought the injury upon himself."
[619]*619The trial court concluded that the golf cart at the time of the accident was not a "motor vehicle" within the meaning of this statute; that these words refer to a vehicle which operates upon a public highway. The guest statute is contained in Chapter 44.03 of the South Dakota Code of 1939. SDC 44.0301 contains definitions of terms in the chapter that are controlling unless as therein provided "the context otherwise plainly requires." Sub. (1) of this section defines "vehicle" as follows: "(E)very device in, upon, or by which any person or property is or may be transported or drawn upon, a public highway, excepting devices moved by human power or used exclusively upon stationary rails or tracks; provided that for the purposes of this chapter, a bicycle or a ridden animal shall be deemed a vehicle" (Emphasis added), Sub. (2) of the same section defines "Motor Vehicle" as follows: "(E)very vehicle, as herein defined, which is self-propelled". If a motor driven golf cart were being operated upon a public highway for the purpose of transporting persons or property, it would undoubtedly be considered a "motor vehicle" within these statutory provisions. They contain reference to vehicles by which any person or property "may be" transported or drawn upon a public highway. The provisions of SDC 44.03 are regulatory in nature governing the use of vehicles upon public highways and the conduct of owners and drivers of vehicles operated thereon. The language in question refers to the type or class of self propelled vehicles primarily designed for transportation of persons or property on public highways. We agree with the holding of the Supreme Court of Wisconsin in Nelson v. Ohio Casualty Insurance Co., 29 Wis.2d 315, 139 N.W.2d 33, to the effect that a highway safety statute was not applicable to a class of motor propelled vehicles so designed that they might never be used for transporting persons or property upon a public highway and that such a motor vehicle is not within the terms of the statute unless being operated upon a public highway at the time of an accident. We hold that a motor driven golf cart while being operated on a golf course is not a "motor vehicle" within the meaning of the guest statute.
In the absence, therefore, of statutory provisions otherwise providing, there existed the common law relationship between the parties of guest and host. This court has held that [620]*620under such circumstances it is the duty of the host to exercise ordinary care to prevent injury to his guest. Barger v. Chelpon, 60 S.D. 66, 243 N.W. 97; Holdhusen v. Schaible, 60 S.D. 275, 244 N.W. 392. In other words, with respect to the operating conditions of the vehicle which are known or should be known to the guest there is no actionable breach of duty on the part of the host or operator of the vehicle; the duty of the host extends only to refrain from increasing the danger or creating a new danger. Petteys v. Leith, 62 S.D. 149, 252 N.W. 18; Hall v. Hall, 63 S.D. 343, 258 N.W. 491; Wakefield v. Singletary, 76 S.D. 417, 80 N.W.2d 84.
Defendant contends that plaintiff assumed the dangers incident to the position which he took on the hood of the golf cart; that there was no handle or other part of the vehicle which he could readily grasp and no place to brace his feet to prevent being thrown from the vehicle traveling over bumpy stretches of the golf course or upon the turning of the highly maneuverable three-wheeled vehicle; and that knowing and appreciating the hazards involved plaintiff did not exercise ordinary care for his own safety. If plaintiff's exposure of himself to known hazards constituted a failure to exercise ordinary care for his own safety, it does not follow that his conduct was the proximate cause of his injury. Plaintiff did not assume the risk of danger or hazard caused by defendant driver's unexpected negligence. Zeigler v. Ryan, 65 S.D. 110, 271 N.W. 767; Stoll v. Wagaman, 73 S.D. 186, 40 N.W.2d 393. The conduct of a person which furnishes the situation or condition whereby an unforeseen and unanticipated act causes his injury will not bar recovery for the injury.
The record discloses that there was ample evidence, much of which was without dispute, to justify submission to 'the jury of the question of negligence on the part of the defendant. Defendant testified on cross examination concerning the accident as follows:
"Q Now, this wasn't a case where you slowed down and made a turn, was it? A As I recall, we hadn't done much slowing down before we turned simply be[621]*621cause we didn't know exactly where the ball was. When we saw the ball, the slowing down took place.
"Q And when I took your deposition back last spring, I asked you about how you made this turn. * * * I said, 'Question: About how fast do you think you were going when you made the turn? Answer: I don't think we were slowed down too much from the normal speed. I think it was a pretty fast turn, as I remember it. Mr. Buche went off of the front side and Mr. Nepstad the right side, and the cart turned sharply to the left.' Now, is that the question I asked you and the answer you gave me? A That's right.
"Q And so that we have this clear, you didn't try to slow that cart down and then make a turn, but rather, what you did was, you came up there and you made a sharp turn to the left, didn't you? A Right.
"Q Well, maybe you don't like my words, Mr. Randall, but suppose we put it this way. I asked you previously whether this was a prank or not, and you said you weren't sure. Do you recall your testimony along that line? A Yes.
"Q But, in any event, what you sought to do and what you accomplished was simply this. You came up there with that cart, you made that sharp turn with the front wheel — and there's only one front wheel? A Right.
"Q It's got that big tire on it and that brought the cart to an instant stop insofar as forward motion was concerned, by causing the front end to go off to the left, didn't it? A Yes.
"Q And you knew in your own mind when that happened that Nepstad was going out toward the right and the other man was going off more or less straight forward? A Yes.
[622]*622"Q And you knew when you started using the word momentum a little while ago and then changed it, but you knew exactly what the momentum was going to do, from your experience didn't you? A Right."
Defendant apparently admits that the instructions of the court accurately stated the law under the applicable comparative negligence statute, but asserts specifically that such statute did not apply to a guest statute action. Plaintiff sustained his injury prior to the effective date of Chapter 149, Laws 1964, amending the comparative negligence statute (SDC 1960 Supp. 47.0304-1), and the amendment requires no consideration. Petteys v. Leith, supra. The objection was not well taken since proof could be made and recovery had for ordinary negligence.
Defendant contends that the evidence introduced did not furnish a basis for the giving of instructions permitting recovery for loss or diminution of earning power. Defendant does not complain of the instructions allowing recovery for the reasonable value of medical and hospital services and for pain and suffering and there is no claim that the verdict is excessive.
Dr. Harvard Lewis, the attending physician, testified that he found a compound fracture dislocation of the right ankle and that there was a fracture of the small bone of the leg and a displacement of the foot "toward the outside laterally, with * * * approximately a half an inch variance from normal"; that he reduced the fracture and a week or ten days later applied a plaster cast covering the leg from the toes to the groin. He testified that at the time of the trial the limitation in the flexion of the ankle required the plaintiff to get down on one knee rather than to squat in a normal manner; and that in his opinion there is an eleven per cent permanent disability in the ankle.
Plaintiff was 59 years old when injured, earning prior to the accident $4.45 per hour as a bricklayer, and at the time of trial had a life expectancy of 14.14 years. Plaintiff testified as to his physical condition before the accident and his disability thereafter; that his earnings were reduced; that he did not work in the year following the accident and for some time thereafter [623]*623his ordinary activities were greatly curtailed because of the injury; and that he cannot when laying brick or concrete blocks climb or stoop over as he did before his injury.
The general rule is that a plaintiff who is injured in his person through the fault of another may recover for impairment of earning capacity measured by the difference between the amount which he was capable of earning before his injury and that which he is capable of earning thereafter. Allen v. Martley, 77 S.D. 133, 87 N.W.2d 355; Weidner v. Lineback, 82 S.D. 8, 140 N.W.2d 597. Plaintiff does not challenge this rule or claim that the instructions considered as a whole do not correctly state the law thereunder, but asserts that there is no evidentiary basis for their application. Defendant contends plaintiff's testimony with reference to his hourly wage as a bricklayer and diminution of income since the accident furnished an improper guide for consideration of the jury. We have recognized that what an injured person has been able to earn in the past in an occupation in which he was engaged is some evidence of his ability to earn in the future. Allen v. Martley, supra. The measure of damages of future earning power is determined by the jury taking into consideration prior ability of the injured person and the extent to which his injuries affect his power to earn together with his age, skill and habits of industry. Davis v. Holy Terror Mining Company, 20 S.D. 399, 107 N.W. 374. Proof with mathematical certainty is not required. 22 Am.Jur., Damages, § 93; see also Peters v. Hoisington, 72 S.D. 542, 37 N.W.2d 410. The evidence was sufficient for the jury to make an allowance for impaired earning capacity as a part of plaintiff's general damages.
Judgment affirmed.
HOMEYER, P. J„ and RENTTO, J„ concur.
BIEGELMEIER, J., concurs specially.
HANSON, J„ dissents.