Cram v. City of Des Moines

Citation172 N.W. 23,185 Iowa 1292
Decision Date06 May 1919
Docket Number31244
PartiesW. F. CRAM, Administrator, Appellant, v. CITY OF DES MOINES, Appellee
CourtUnited States State Supreme Court of Iowa

Appeal from Polk District Court.--C. A. DUDLEY, Judge.

A car driven by one Brownell was alleged to have been diverted from its course and thrown into the railing of a bridge because of the condition in which the defendant is alleged to have kept a roadway. The decedent, Teague, was in this car, and was so injured as to come to his death shortly thereafter. There was verdict and judgment for the defendant. On this appeal, the complaint is limited to the giving of one instruction, and the submission of certain interrogatories.--Reversed and remanded.

Reversed and remanded.

Dunshee & Haines, for appellant.

H. W Byers, Eskil C. Carlson, and E. M. Steer, for appellee.





The jury was told that they might impute the negligence of the driver, Brownell, to the decedent, if they found that Brownell was driving the car "at the request of said decedent, for the use and benefit of the said decedent." Again, "or if you find that decedent controlled or had the right to control and direct the driving of said car, whether he exercised the right or not." Appellant urges there was no evidence whereon to base this much of the charge. We hold with appellee that no such complaint may be made now, because a party is precluded from objecting to an instruction upon the ground that it submits an issue not raised by the evidence where he has, himself, requested an instruction upon that issue. We think Instruction 1, offered, invokes this rule.

II. Eliminating, as we have, some objections involving that there was no evidence to support the charge, we have next for consideration a direction as to what the jury should do if it found that the driver and decedent "were using said car in a common enterprise, to wit, a mutual pleasure ride at the request or upon the suggestion of said decedent." Was there any evidence of a joint venture, and that the car was used in a common enterprise? It appears that Brownell arrived in Des Moines about midnight of the night preceding the accident; that he arose about seven the next morning, and about nine, began entertaining prospective purchasers of Haynes cars. He was the service man for the company that manufactured that car. The state agent of that company had engagements with some out-of-town dealers, to demonstrate this car to certain prospective customers, but was taken sick that morning, and requested Brownell to demonstrate the car. In the afternoon, he drove a dealer, a prospect, and another man to a ball game, in the demonstrate car. He continued with these men until after supper, and continued entertaining two of the men and driving them around all evening, and up to the time at which he met decedent. If there be any evidence of a joint enterprise in which decedent was engaged with Brownell, it must necessarily be because of what happened after the time when Brownell and decedent met. This occurred about eleven at night. Brownell chanced to meet decedent and a young lady, whose escort to the theater he had been, and at the request of the young lady, took her and decedent into his car and drove them to her home. There, decedent asked Brownell to wait for him, and said he would ride back to the city with him. Brownell waited some five minutes. Decedent and some of the dealers, who had been in the car all the time, returned to the city. Then one dealer was taken to where he was staying. Brownell and decedent then returned to the city, and still another person in the car got out at a drug store. Thereafter, the car was left in front of the hotel at which decedent was staying, and on his invitation, Brownell went to decedent's room with him, arriving there about one o'clock. The two smoked, and drank about a pint of beer apiece. This was followed by a lunch. After this lunch, decedent suggested that they take a little ride before they retired, and Brownell consented. He then inquired of decedent where they should drive; whereupon, decedent suggested that they go out Grand Avenue and back, and this they proceeded to do.

It is upon this evidence that the support of submitting joint enterprise or joint venture must rest. Is it any evidence of such venture or enterprise?

Speaking to Payne v. C., R. I. & P. R. Co., 39 Iowa 523, and to the analysis of it made in Nesbit v. Town of Garner, 75 Iowa 314, it was said in McBride v. Des Moines City R. Co., 134 Iowa 398, at 408, 109 N.W. 618, that the ground of the decision in Payne's case "is very briefly and inadequately stated, and that case has been cited in other courts [citing] as supporting the general rule of imputed negligence announced in Thorogood v. Bryan, 8 C. B. 114, which has been expressly repudiated in practically all the courts of last resort in this country in which the question has been considered" (citing Little v. Hackett, 116 U.S. 366, [6 S.Ct. 391, 29 L.Ed. 652]; Union Pac. R. Co. v. Lapsley, 51 F. 174; Kowalski v. Chicago G. W. R. Co., 84 F. 586; and Robinson v. New York C. & H. R. Co., 66 N.Y. 11). To the repudiations of the Thorogood case may be added New York, L. E. & W. R. Co. v. Steinbrenner, 47 N.J.L. 161; Bennett v. New Jersey R. & T. Co., 36 N.J.L. 225; Miller v. Louisville, N. A. & C. R. Co., 128 Ind. 97 (27 N.E. 339); Nesbit v. Town of Garner, 75 Iowa 314, 318, 319; Wabash, St. L. & P. R. Co. v. Shacklet, 105 Ill. 364; Chapman v. New Haven R. Co., 19 N.Y. 341; Danville, L. & N. T. R. Co. v. Stewart, 59 Ky. 119, 2 Met. 119; Louisville, C. & L. R. Co. v. Case's Admr., 9 Bush 728; Cuddy v. Horn, 46 Mich. 596 (10 N.W. 32); and Tompkins v. Clay Street R. Co., 66 Cal. 163 (4 P. 1165). We pointed out, in Nesbit v. Town, 75 Iowa 314, 318, that the Thorogood case has been criticized and discredited in the courts of England.

As we define it in the McBride case and the Nesbit case, the Payne case and others like it merely announce "the general rule that, where several persons are engaged in a common enterprise, in the carrying on of which each is participating, the negligence of one of them may be imputed to the others." And it is justifiable to add that the Payne case exhibits an indubitable case of joint enterprise. As much is true of Yahn v. City of Ottumwa, 60 Iowa 429, 15 N.W. 257. We are unable to see how Stafford v. City of Oskaloosa, 57 Iowa 748, 11 N.W. 668, has any substantial bearing on the controversy in hearing. And this is so of Boyden v. Fitchburg R. Co., 72 Vt. 89 (47 A. 409). Though Koplitz v. City of St. Paul, 86 Minn. 373 (90 N.W. 794), is cited by appellee, it certainly does not aid it. The plaintiff, a young lady, was one of a picnic party, consisting of young men and ladies, the latter furnishing the lunch and the former the transportation, an omnibus drawn by four horses, with the hiring or driving of which the lady had nothing to do. The conveyance was overturned, and the plaintiff was injured by the negligence of the defendant city and the contributory negligence of one of the young men, who was driving at the time. In holding that his negligence could not be imputed to the defendant, like unto Payne's case, there is a declaration of the general rule that, if two or more persons' unite in the joint prosecution of a common purpose, under such circumstances that each has authority, expressed or implied, to act for all in respect to the conduct or the means of agency employed to execute such common purpose, the negligence of any one of them in the management thereof will be imputed to all of the others. To formulate a rule is one thing; to hold it applicable, quite another.

In Nesbit v. Town of Garner, 75 Iowa 314, plaintiff resided in the country, and, on the day of the injury, was invited by one of his neighbors to accompany him to the town. They were accompanied by one Sheridan, who had been in the employ of the neighbor, but his term of service had expired the day before. The vehicle in which the party rode and the team by which it was drawn belonged to the neighbor. Some time after arriving in town, plaintiff and Sheridan went to a shop for the purpose of procuring some shovels belonging to a brother of the owner of the team and wagon, which he had requested them to carry out to the country for him; and it was when they were driving from the shop to another part of the town, Sheridan driving, that the accident occurred. It was due to some fault of the city in proper maintenance of the street. Plaintiff testified he neither gave any direction as to the manner of driving nor assumed any control over the team or its movements. It was contended that what occurred after plaintiff and Sheridan left the shop constituted a joint venture, and brought the case within the rule of the Payne case; and we disapproved an instruction, in effect that, if Sheridan's negligence contributed to the injury, plaintiff could not recover.

Mere friendly companionship in a walk will not constitute a common enterprise. Barnes v. Town of Marcus, 96 Iowa 675, 65 N.W. 984; Bailey v. City of Centerville, 115 Iowa 271, 88 N.W. 379.

"The mere fact that they both have engaged in the drive because of the mutual pleasure to be so derived does not materially alter the situation." Withey v. Fowler, 164 Iowa 377, 145 N.W. 923.

Carpenter v. Campbell Auto Co., 159 Iowa 52, 140 N.W. 225, affirms every rule asserted by appellant, but rightly finds that the Carpenter case is not controlled by these rules. In that case, one Means was the owner of a car which he had had only a few days, and had never tried. He was interested in knowing whether or not it worked properly; in whether there was anything wrong with it. While...

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