Kalland v. City of Brainerd

• Court: Minnesota Supreme Court
• Writing for the Court: DIBELL
• Citation: Kalland v. City of Brainerd, 141 Minn. 119, 169 N.W. 475 (Minn. 1918)
• Decision Date: 22 November 1918
• Docket Number: No. 20987.,20987.
• Parties: KALLAND v. CITY OF BRAINERD.

141 Minn. 119

169 N.W. 475

KALLAND

v.CITY OF BRAINERD.

No. 20987.

Supreme Court of Minnesota.

Nov. 22, 1918.

Appeal from District Court, Crow Wing County; C. W. Stanton, Judge.

Action by Arnold Kalland against the City of Brainerd. Verdict for plaintiff, and from an order denying its alternative motion for judgment or a new trial, the defendant appeals. Order affirmed.

Syllabus by the Court

The negligence of the driver of an automobile hired by the plaintiff, who rode in it, but neither had nor assumed control, is not imputed to him.

An instruction requested by the defendant, that the negligence of the driver is not imputed to a passenger ‘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 the part of such driver,’ was properly refused.

The personal negligence of the passenger, contributing to his injury, bars a recovery; but such negligence is distinct from the negligence of another, imputed to the passenger because of agency or relationship.

The plaintiff was an apprenticed bricklayer. His apprenticeship would expire six months after his injury. It was not error to permit proof of the wages of a journeyman bricklayer in the community as bearing on damages. W. H. Crowell, of Brainerd, for appellant.

M. E. Ryan, of Brainerd, for respondent.

DIBELL, J.

The plaintiff, a passenger in a hired automobile, was injured because of a defect in a street of the defendant city. He had a verdict and the city appeals from an order denying its alternative motion for judgment or a new trial. There is no question of the sufficiency of the evidence to sustain a finding that the city was negligent.

1. The plaintiff hired an automobile to take him and some companions a few miles out of Brainerd. He had no right of control over the movements of the automobile, nor did he assume any, nor were he and the driver engaged in a joint undertaking. Under our holdings and under the nearly universal holdings elsewhere the negligence of the driver under such circumstances is not imputed to the plaintiff. The doctrine is fully discussed in Follman v. Mankato, 35 Minn. 522, 29 N. W. 317,59 Am. Rep. 340, and Cotton v. Willmar, etc., Ry. Co., 99 Minn. 366, 109 N. W. 835,8 L. R. A. (N. S.) 643, 116 Am. St. Rep. 422,9 Ann. Cas. 935. And see Dunnell's Minn. Dig. & Supp. § 7037 et seq.; note 8 L. R. A. (N. S.) 597-677; note L. R. A. 1915A, 761, 765. The court rightly charged that the negligence of the driver was not imputed to the plaintiff.

[2][5] 2. The defendant requested an instruction to the effect that the negligence of a driver is not imputed to a passenger ‘unless he had authority to control or was charged with the duty to control such driver, or had reason to suspect a want of care or skill on the part of such driver.’

Though the negligence of the driver is not imputed to the passenger the personal negligence of the latter contributing to his injury bars a recovery. This question is considered in some of our recent cases. Christison v. St. Paul, etc., Ry. Co., 138 Minn. 456, 165 N. W. 273;McDonald v. Mesaba Ry. Co., 137 Minn. 275, 163 N. W. 298;Carnegie v. G. N. Ry. Co., 128 Minn. 14, 150 N. W. 164.

Some confusion arisen because of a failure to distinguish always between negligence which is imputed and the personal negligence of the passenger. The distinction is obvious. The imputation of negligence comes because of agency or relationship and there need be no fault on the part of the one to whom negligence is imputed. The negligence of the passenger which prevents recovery is his own negligence which contributes to his injury.

The refusal to give the requested instruction was right. There was no evidence that the plaintiff had authority to control the driver. He was not charged with the duty of control. There is no evidence that he had reason to suspect a want of care or skill on the part of the driver; and if he had had knowledge of want of care in the driver his knowledge would have borne upon contributory negligence rather than upon the imputation of negligence.

Counsel for the city cites Cunningham v. Thief River Falls, 84 Minn. 21, 86 N. W. 763, and Carnegie v. G....