Hasty v. Pittsburg Cnty. Ry. Co.
Decision Date | 07 July 1925 |
Docket Number | Case Number: 13419 |
Citation | 240 P. 1056,112 Okla. 144,1925 OK 576 |
Parties | HASTY v. PITTSBURG COUNTY RY. CO. |
Court | Oklahoma Supreme Court |
¶0 1. Negligence--Imputed Negligence--Automobile Accident--Negligence of Driver.
The contributory negligence of the chauffeur is imputable to one riding as a guest or companion only where the relation of master and servant or principal and agent exists, or where the parties are engaged in a joint enterprise, whereby the responsibility for each other's acts exists.
2. Same--Husband's Negligence in Driving not Imputable to Wife.
In an action for injuries to plaintiff from a collision with street car of defendant, while riding with her husband as passenger in automobile, negligence on the part of her husband in not exercising due care at the time is not imputable to the wife by reason of such relationship.
3. Same--Action Against Street Railroad--Instructions--Prejudicial Error.
Plaintiff, wife, was riding in the front seat of the automobile, owned and driven by her husband at the time she received alleged injuries in a collision with a street car, there being no evidence of agency or joint enterprise between them. Held, that, as matter of law, plaintiff was entitled to an instruction that the negligence, if any, of her husband at that time was not imputable to the plaintiff, and that an instruction given by the court that the jury might consider certain facts--enumerating them--in determining whether the jury would impute the negligence, if any, of the husband to the plaintiff, was prejudicial error.
Commissioners' Opinion, Division No. 2.
Error from District Court, Pittsburg County, A. C. Brewster; Assigned Judge.
Action by Maude Hasty against Pittsburg County Railway Company. Judgment for defendant, and plaintiff appeals. Reversed and remanded for new trial.
J. S. Arnote, for plaintiff in error.
Monk & McSherry, for defendant in error.
¶1 Parties appear in the same order as in the trial court. Plaintiff sued defendant street railway company for damages for personal injuries, alleging various acts of negligence. Judgment was for defendant on verdict of jury. Second street runs north and south in the city of McAlester and crosses Electric avenue running east and west. Defendant's street railway line is located on the south side of said Electric avenue. About noon on Sunday, plaintiff, Maude Hasty, and her husband started north on said Second street in the automobile owned and driven by the husband, plaintiff sitting in the front seat by his side. A short distance south of Electric avenue, at the request of plaintiff, said husband stopped said car, and a Mrs. Bell and three children were invited to ride, occupying the rear seat. On the east side of Second street, and immediately south of Electric avenue, are a building and certain trees and shrubbery, partially obstructing the view to the east of one approaching Electric avenue from the south. Plaintiff's injuries were received in a collision with a west-bound electric car of defendant, as the automobile driven by plaintiff's husband attempted to cross said Electric avenue.
¶2 The main assignment of error argued by plaintiff involves instruction No. 12, as follows:
"It is the duty of the driver of an automobile, in approaching a railroad crossing, to look and listen for a train, and if he fails to do so, it is negligence within itself; this rule does not generally apply in all its force to a passenger in a car, riding with the driver, and who has no control over the driver or his management of the car, but the negligence of such passenger must be determined according to all the facts and circumstances existing at the time of the accident; and in determining in this case whether you will or will not impute the negligence, if any, of plaintiff's husband to the plaintiff, you may take into consideration what control, if any, she had upon the car and driver, or of the management of the car, her proximity to the driver, her relation as his wife, where she was seated in the car, the acquaintance with his driving and his skill or want of skill to drive, his experience or lack of experience, the kind of car driven, the condition of the car at the time, her acquaintance with the crossing where the accident occurred, her knowledge of the running of trains at the crossing, her opportunity for observing the approach of the train, whether or not she saw, or could have seen, by looking and listening, the approach of the train and could have notified the driver of same, or whether after she saw the train approaching, she did notify the driver, and under all the circumstances whether or not she acted as a reasonably prudent person would have acted, and whether she exercised due care and prudence for her own safety immediately before and at the time of the accident."
¶3 Plaintiff complains that the giving of the foregoing instruction was error, prejudicial to her, in that it authorized the jury to impute to the plaintiff the negligence of her husband, the driver.
¶4 In many states, the doctrine is not recognized. There is no hint of agency in the record. If the husband's negligence may be imputed to plaintiff, it must be because they were engaged in a joint enterprise. Defendant did not so plead. Defendant averred only contributory negligence--that plaintiff did not keep a sufficient lookout for her own safety, did not direct her husband to slow down on approaching the crossing, permitted her husband to drive at an excessive rate of speed in violation of the ordinance, permitted her husband to drive at such high speed without herself looking and listening for the defendant's street car, and failed to direct her husband to give the right of way. These were acts of omission and commission, which, if true, constituted contributory negligence on the part of plaintiff. In the Bell Case, supra, it is said:
"It follows that, as the negligence of the driver cannot be imputed to the deceased, the court did right to decide that question on the undisputed facts as a matter of law, and that the question so decided was not a question of contributory negligence, required to be left to the jury as a question of fact by Constitution," etc.
¶5 Thereby and otherwise in that case, this court recognized that imputable negligence is not a concomitant of contributory negligence of plaintiff, although in the dissenting opinion therein, it is stated that imputable negligence is not a distinct and independent defense, but is a feature and a part of the defense of contributory negligence. Assuming, without deciding, that defendant's said plea of contributory negligence was sufficient to support its contention of imputed negligence, the record is without evidence to support a joint enterprise between plaintiff and her husband. There is evidence in the record from which negligence on the part of the husband may be inferred. The evidence shows simply that plaintiff was riding in the front seat with her husband on their way to North McAlester. Plaintiff never had driven an automobile. Even if they were on a pleasure trip, to get their children--as suggested in brief of counsel--it was not a joint enterprise. In the Bell Case, supra, this court said:
¶6 We think the right to direct and govern the conduct of each other, referred to above, involves the correlative duty so to do, or responsibility therefor. That duty involves authority in the matter of directing the driving. The principal or master has the right and authority to direct his agent or servant in the matter of driving, whence arises the...
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