Jensen v. Chicago, M. & St. P. Ry. Co.

• Decision Date: 27 February 1925
• Docket Number: 18855.
• Citation: 133 Wash. 208,233 P. 635
• Court: Washington Supreme Court
• Parties: JENSEN v. CHICAGO, M. & ST. P. RY. CO. et al.

233 P. 635

133 Wash. 208

JENSEN v. CHICAGO, M. & ST. P. RY. CO. et al.

No. 18855.

Supreme Court of Washington

February 27, 1925

Department 2.

Appeal from Superior Court, Pierce County; Askren, Judge.

Action by Hermine Jensen, as administratrix of Jens P. Jensen against the Chicago, Milwaukee & St. Paul Railway Company and another. From an adverse judgment, plaintiff appeals. Affirmed.

W. H. Abel, of Montesano, Robt. B. Abel, of Tacoma, and John D. Ehrhart, of Hoquiam, for appellant.

George W. Korte, of Seattle, and H. S. Griggs, of Tacoma, for respondents.

MAIN J.

Jens P Jensen, while riding in an automobile, was struck and killed by one of the defendant's railroad trains at a crossing and his administratrix brought this action for damages. There was a verdict for the defendant, and the plaintiff appeals.

The facts so far as material for the purpose of this decision may be stated thus: At about noon on June 12, 1923, Joe Sonnabend, Jensen, and five others left Hoquiam in a Cole automobile for the purpose of attending a prize fight in Seattle that night. Sonnabend owned for car. The trip had been talked over among the parties for a number of days. They were to drive through to Seattle, attend the fight, and return to Hoquiam. Jensen gave Sonnabend a ticket. The members of the party aside from Sonnabend and one other had discussed among themselves before they started the matter of the expense, and they had agreed that Sonnabend should not be out anything. It does not appear that this information had been conveyed to Sonnabend. They arrived in Seattle at about 6 o'clock, had dinner, attended the fight, and started for home. At Sumner, while crossing the tracks of the respondent's railway, the automobile was struck by an engine pulling a freight train. Jensen was severely injured and died in the hospital about two hours afterwards.

The facts bearing on the question as to whether the respondent was negligent and on the question whether Sonnabend, the driver of the car, was negligent need not be here detailed, as the case turns primarily upon whether Sonnabend's negligence was imputed to Jensen. Further reference to some of the facts will be hereinafter made.

The first question is whether what is known as the doctrine of common enterprise or community of interest was properly submitted to the jury. The instruction complained of was as follows:

'If you find from the evidence that the purpose of the trip from Hoquiam to Seattle by Jensen and the other occupants of the automobile was to go there to attend a prize fight and return to Hoquiam, and that there was an understanding between them that they were to jointly bear the expenses of the trip, then you are instructed that this would make the purpose of the trip a common venture in which all of the parties have a community of interest, and under those circumstances the negligence, if any, of Sonnabend, as the driver of the automobile, would be imputed to the deceased Jensen and the others in the party. * * * '

The objection to the instruction appears to be that it does not embody the thought that at the time of the accident the negligence of Sonnabend could not be imputed to Jensen, unless at that time Jensen had authority and control over the driver of the automobile in the matter in which the driver was negligent. That is the rule when the question of the relationship is master and servant or principal and agent, but it is not the rule with reference to a joint enterprise or a community of interest. The question as to what constitutes a joint enterprise or a community of interest has been frequently before the courts. In Wash. & O. D. Ry. Co. v. Zell, 118 Va. 755, 88 S.E. 309, two parties, Zell and Peck, were intimate friends and associates. Peck owned an automobile in which he and Zell frequently went out together on pleasure trips. Zell frequently drove the car when Peck was along. When out on one of their trips and Peck was driving, the automobile was struck by a passenger train owned and operated by the defendant, and Zell was killed. It was there held that the negligence of Peck was imputed to Zell, and would bar a recovery. In the course of the opinion it was said:

'But it is claimed that the negligence of the driver, Peck, cannot be imputed to Zell. Inasmuch as they left Alexandria fifteen minutes before the accident with Peck at the wheel, it is a fair inference that he was still driving the car, but in our view of the case that fact is immaterial, because Zell's situation did not bring him within the rule applicable to invited guests or passengers as applied in A. & D. R. Co. v. Ironmonger, 95 Va. 625, 632, 29 S.E. 319, but, upon the contrary, brought him within the reason and the terms of the rule that, where two persons are engaged in a joint enterprise or adventure in the use of an automobile, even though the enterprise or adventure be only a pleasure trip, the contributory negligence of either, within the scope of the enterprise, will bar a recovery by the other. In this case Zell had taken the lead that morning in the joint project in which they were engaged, and can by no reasonable intendment be classed as an invited guest or passenger in the sense in which those terms are used in the Ironmonger Case and the many other

...