Switzer v. Baker
| Decision Date | 18 December 1916 |
| Docket Number | No. 30871.,30871. |
| Parties | SWITZER v. BAKER ET AL. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Polk County; W. S. Ayres, Judge.
Plaintiff sues to recover damages for personal injury, and from a judgment in her favor against both defendants they appeal. The material facts are stated in the opinion. Reversed and remanded.Read & Read and L. A. Smyres, all of Des Moines, for appellants.
Thomas J. Guthrie and Thomas A. Cheshire, both of Des Moines, for appellee.
On October 28, 1913, at the crossing of West Locust and Seventh streets in the city of Des Moines, the plaintiff was struck and injured by an automobile moving west on Locust driven by the defendant Henry G. Baker. The petition alleges that such injury was occasioned without fault on plaintiff's part by the negligence of both Henry G. Baker and his codefendant, William H. Baker, and that the injuries received by her were many and serious. The petition particularizes the acts and omissions constituting the alleged negligence as being the failure on defendant's part to have chains upon the wheels of their automobile, although the street was icy and slippery, and the driving and operation of the car at a reckless or careless rate of speed. Further negligence is charged in the failure of the defendants to sound the gong or give other warning of their approach, and that defendants saw plaintiff upon the crossing and failed to stop or check their speed to prevent the collision. The defendants deny any negligence on their part and say that the collision was occasioned by the plaintiff's own negligence. Pending the trial of the case, plaintiff amended her petition by alleging that defendants on reaching Seventh street suddenly turned northwest, and were moving in that direction when they struck the plaintiff. She further alleged that the car by which she was injured belonged to the Baker Machinery Company and was at this time being driven from the company's factory by Henry G. Baker to his home (which was in the direction or and near the home of the defendant William Henry Baker) with the consent and approval of the latter, and that the destination of such car was a garage at his home. Plaintiff charges that William Henry Baker was the bailee of the car and that Henry G. Baker in driving it was his servant or agent for whose negligence he was liable. At the close of the testimony, the defendant William Henry Baker moved for a directed verdict in his favor on the ground that no evidence had been produced on which a verdict against him could be sustained. The motion was overruled, and error is assigned upon the ruling. A verdict was returned for plaintiff against both defendants for $3,000, and a motion for new trial was denied as to each. The several errors assigned by the defendants and each of them are considered in subsequent paragraphs of this opinion so far as the same is necessary for the proper disposition of this appeal.
[1] I. Did the court err in refusing to direct a verdict in favor of William Henry Baker?
Of this, an examination of the entire record leaves no room for reasonable doubt. The original petition on which plaintiff proceeded to trial alleged that the car at the time of the petition was occupied by both defendants. The undisputed evidence conclusively shows that the father, William H. Baker, was not in the car in question at all, but was riding in another car driven by another person following at a short distance behind the car which collided with plaintiff and arrived on the scene very soon thereafter. It was also shown without dispute that the father and son were both officers or employés of a manufacturing corporation doing business in East Des Moines, and that they lived in separate homes in West Des Moines. William H. Baker, who was president of the corporation, had at least one or two other sons also employed at the factory. The corporation owned the motor car here in question for use in and about its business, and the elder Baker and his sons were in the habit of using it severally and in common to ride back and forth between their homes and the factory. Only one of the defendants, William H. Baker, had a garage at his home, and the car when on the west side was kept or stored there. On the evening of the accident, at the close of the day's work, this car was standing in front of the factory, as was also another car owned by a son-in-law of William H. Baker. The defendant Henry G. Baker, with one of his brothers and a brother-in-law, entered the car belonging to the company and started homeward. William Henry Baker entered the other car with his son-in-law and followed in the same direction. They continued in this order until the collision took place at West Locust and Seventh streets. After the accident occurred and plaintiff had been taken to her home, the defendants went to their several homes, and the car was put up at William Henry Baker's garage, and was used by him in returning to the factory on the following morning. Now this constituted the entire showing upon which it is sought to charge the elder Baker with liability in this case. Its utter insufficiency for that purpose is so clear from the simple statement of the facts that argument is quite superfluous. There is not a word of evidence tending to indicate directly or indirectly that Henry G. Baker, who was driving the car and whose negligence, if any, was the cause of plaintiff's injury, was the servant or agent or representative of his father, or that he was then engaged in or about his father's business or service, or was subject in any degree to his father's orders or control. Their family relationship was of a close and intimate character, and, being both employed in the business of the same corporation and living in the same neighborhood, it was a natural thing that they should frequently travel together between their homes and place of work and, when convenient, should use the same vehicle. When so traveling together in the same car, they might or might not have been jointly or severally liable for negligence in its management, according to the peculiar circumstances attending an injury to a pedestrian; but upon what theory, when the father and son were in different cars, neither party having any vestige of control or right of control over the other, the negligence of the driver of one car can be imputed to a passenger riding in another, would seem to be past finding out. On this subject the court charged the jury as follows:
You are instructed that the burden of proof is upon the plaintiff to show, by a preponderance of the evidence, that at the time in question the defendant Henry G. Baker was driving said car for and on behalf of the defendant Wm. Henry Baker.
You are further instructed that if the defendant Henry G. Baker, at said time, was driving said car for the purposes and benefit of the defendant Wm. Henry Baker, then, and in that event, he would be the servant, agent, or representative of the defendant Wm. Henry Baker.
If you fail to find that said Henry G. Baker was acting as the servant, agent, or representative of the defendant Wm. Henry Baker, in driving said car at said time, then you will return your verdict for the defendant Wm. Henry Baker.
If you find that said Henry G. Baker was acting at said time as the servant, agent, or representative of the defendant Wm. Henry Baker, then, in that event, the said Wm. Henry Baker would be responsible for the negligent acts, if any, of said Henry G. Baker, and the instructions following would apply to both defendants.
Assuming, though not deciding, that the quoted instruction would be correct in a case calling for the submission of such question to the jury, there was no fact or circumstance in evidence from which the jury could be permitted to find the existence between the defendants of the relation of master and servant, or of principal and agent, and in refusing to direct a verdict for the father, and in giving the quoted instruction the jury were turned loose to hunt for a verdict in the wide field of conjecture. The motion for a directed verdict in favor of this defendant should have been sustained.
[2] II. The proposition argued in favor of the defendant Henry G. Baker, that there is no evidence of negligence on his part in connection with the accident, and that plaintiff was herself negligent as a matter of law, is not well founded. It is to be admitted that the circumstances of the collision as detailed by the decidedly greater number of witnesses strongly tend to show that the car was being driven slowly and with due care, and that plaintiff when safely across the car's line of travel became confused, lost her head, and suddenly turned back into the danger which she would have wholly escaped had she pursued her course; but there was some dispute upon both propositions. One witness testifies quite positively that the car was being driven at a rate of speed which was excessive and reckless at such a time and place. He further swears that defendant admitted to him that the car was moving rapidly because of the lateness of the hour and their anxiety to get home. The testimony of this witness is marred by many inconsistencies and contradictions, but it was still within the province of the jury to give him credit, and we think the court could not properly have directed a verdict for this appellant on the ground of an entire want of evidence to support the claim sued upon.
III. By an amendment to the petition pending the trial the plaintiff pleaded the existence of city ordinance, one section of which the abstract states was offered in evidence. The record so made, while showing that defendant's objection to the offer was overruled, does not state, either in hæc verba or in substance, the provisions of the offered section. True, as a matter of pleading plaintiff attached to the amendment of her petition an alleged copy of the ordinance; but...
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