Craig v. Chicago, St. Paul, Minneapolis & Omaha Railway Company

• Citation: 150 N.W. 648,97 Neb. 586
• Decision Date: 06 January 1915
• Docket Number: 17,876
• Parties: ALVARADO W. CRAIG, ADMINISTRATOR, APPELLEE, v. CHICAGO, ST. PAUL, MINNEAPOLIS & OMAHA RAILWAY COMPANY ET AL., APPELLANTS
• Court: Nebraska Supreme Court

150 N.W. 648

97 Neb. 586

ALVARADO W. CRAIG, ADMINISTRATOR, APPELLEE, v. CHICAGO, ST. PAUL, MINNEAPOLIS & OMAHA RAILWAY COMPANY ET AL., APPELLANTS

No. 17,876

Supreme Court of Nebraska

January 6, 1915

APPEAL from the district court for Douglas county: LEE S. ESTELLE JUDGE. Affirmed.

AFFIRMED.

George W. Peterson, Brome & Brome and James B. Sheean, for appellants.

Sullivan & Rait and W. T. Thompson, contra.

LETTON J. BARNES, FAWCETT and HAMER, JJ., not sitting.

OPINION

LETTON, J.

This action is brought by the administrator of the estate of Catherine E. Craig, for the benefit of himself and the next of kin, to recover damages for the death of his wife. Judgment was rendered in his favor for $ 10,000. Defendant appeals.

The principal facts with relation to the accident whereby Mrs. Craig lost her life are set out at length in the opinion in the case of Craig v. Chicago, St. P., M. & O. R. Co., ante, p. 426. It will be unnecessary, therefore, to consider the claim of defendant that the evidence does not support a finding that it was guilty of negligence, that point having been decided adversely to its contention in the former case. We adhere, also, to the view expressed as to the defense of contributory negligence with respect to Zell Craig. Defendant contends that the negligence of Zell Craig must, as a matter of law, be imputed to Catherine Craig, and that, if this claim is decided adversely, then the damages awarded are so excessive as to have been the result of passion and prejudice on the part of the jury. In both cases defendant asserts that the court erred in not receiving evidence in support of its counterclaim for damages to its engine, train and track resulting from the derailment caused by the collision. The latter point was not considered in the other case, but will be considered briefly here.

Even if a tort could be offset against a tort, such a counterclaim as this cannot be asserted.

The plaintiff is suing in his representative capacity as a trustee. The action is not brought for the benefit of the estate of the deceased, nor can the amount, if any, recovered be made subject to any claims of creditors. The cause of action is one created by statute. Its purpose is to prevent those persons who had the right to look forward to the services of, or support from, the deceased, and who will suffer a pecuniary loss by the death, from being deprived thereof by the wrongful act of the defendant. If Zell Craig, as the agent or servant of Alvarado W. Craig in the driving of his team, recklessly and carelessly caused injury and damage to another, under the doctrine of respondeat superior, Alvarado W. Craig might be liable personally, but he could not be liable in a representative capacity. In such a case, if Zell Craig were the agent or servant of the mother, whether her estate could be reached or not, the fund created for the benefit of her heirs and next of kin could not be touched. The court, therefore, properly rejected this evidence.

Upon the question of imputed negligence, the court gave the following instructions:

"(6) If you find from the evidence that Zell Craig was on the day of the accident sent to Lyons by his father, on his father's business, driving his father's team, and that Catherine E. Craig went on business of her own, without any authority or duty with respect to the driving of the team, and without any reason to suspect the want of care or skill on the part of her son, then and in that case, his negligence, if any there was, could not be charged or imputed to her, and the relation of mother and son would not alone and of itself afford a necessary inference that she possessed the right, or was charged with the duty, to control or direct the driving of the team.

"(7) When a passenger, while riding in a private vehicle with the consent of the driver or owner thereof, is injured by the concurring negligence of the driver and another, the negligence of the driver is not imputed to the passenger, so as to prevent a recovery of damages for the injury sustained, unless he had authority to control, or was charged with a duty to control, such driver, or had reason to suspect a want of care or skill on his part. Applying this principle to the case in hand, you are instructed that the negligence of Zell Craig, if any there was, contributing to the accident in question, cannot be charged or imputed to Catherine E. Craig, so as to prevent a recovery in this case, unless she possessed the right, or was charged with the duty, to control such driver, or had reason to believe or suspect that there was a want of care or skill on his part."

The complaint is made that "the rule of law thus announced is not applicable to the undisputed facts, and is erroneous." It is also stated that the mother gave the directions as to the grist and the manner in which the corn should be ground, and it is argued that the business at the mill was a joint enterprise for the benefit of the family, but, even if it was not so, that, in the absence of the father, Mrs. Craig was the master or principal and the son was her servant or agent.

The doctrine of imputed negligence has been considered in this state in the cases of Omaha & R. V. R. Co. v Talbot, 48 Neb. 627, 67 N.W. 599, Loso v. Lancaster County, 77 Neb. 466, 109 N.W. 752, and Hajsek v. Chicago, B. & Q. R. Co., 68 Neb. 539, 94 N.W. 609. The holding in the Talbot case is modified by the Loso case. It was held in the Hajsek case: "Except with respect to the relation of partnership, or of principal and agent, or of master and servant, or the like, the doctrine of imputed negligence is not in vogue in this state." This is the rule adopted by nearly every state in the Union. Loso v. Lancaster County, supra. If there is any doubt or question as to the nature of the relation existing between Mrs. Craig and her son with respect to the management of the team at the time the accident happened, the question is one of fact for the jury. So far as the evidence shows in this case, Mr. Craig was the owner of the farm and carried on the farming operations. It was at his direction that the son went to the mill, it was his team and wagon that was used, and the grist that was to be ground belonged to him. It is true that the miller asked Mrs. Craig how she would like the meal ground, and, housewife like, she indicated her preference; but this does not indicate that the corn was not the property of her husband. Mrs. Craig had not driven a team for ten years. There is nothing to show that she was invested with any authority over her son with respect to the management of the journey. The son went to town upon the father's business, and it is shown that the mother desired to go in order to exchange a pair of shoes for a better...