Kloppfenstein v. Eads

• Decision Date: 30 March 1927
• Docket Number: 20414.
• Parties: KLOPPFENSTEIN v. EADS et al. [*]
• Court: Washington Supreme Court

254 P. 854

143 Wash. 104

KLOPPFENSTEIN v. EADS et al. ^[*]

No. 20414.

Supreme Court of Washington

March 30, 1927

Department 2.

Appeal from Superior Court, Thurston County; Wilson, Judge.

Action by C. W. Kloppfenstein, as administrator of the estate of John H. Murray, deceased, against William S. Eads and wife and others. Judgment for plaintiff, and the defendants named appeal. Reversed and remanded, with instructions.

Askren J., dissenting.

Troy &amp Yantes, of Olympia, for appellants.

Thos L. O'Leary, of Olympia, for respondent.

BRIDGES J.

In May 1925, John H. Murray, a traveling salesman, and whose administrator brought this action for damages on account of his death, employed the defendants Eads' truck to convey his five or six sample trunks from Olympia to Shelton. An agreement was made between the parties as to the charge for the hauling. No arrangements were made whereby Mr. Murray was also to ride on the truck, but as it started from Olympia he asked the driver to stop, and he then got on the driver's seat and thus continued on the trip to Shelton; the defendant Bailey, a servant of the defendants Eads, doing the driving and being in charge. Because of Mr. Murray's death and the provisions of section 1211, Rem. Comp. Stat., no testimony was received as to what the decedent said, or what, if anything, was said to him, concerning taking him in the truck. It is plain that deceased did not pay anything for his own transportation, did not intend, and was not expected by appellants, to pay. The road between Olympia and Shelton is paved for a width of 18 feet, and, generally speaking, on either side there is a dirt or gravel shoulder of more or less width. After the truck was well on its way to Shelton, it started to rain, and Mr. Murray asked Bailey, the driver, if there were curtains, and being informed that there were, he asked that they be put up to protect against the rain. Bailey drove the truck a short distance, stopped it, and proceeded to put up the curtains. There is a sharp dispute as to the location of the truck, when it was stopped, with reference to the pavement. There is some testimony to the effect that the right-hand front and rear wheels were off the pavement, while there is also testimony to the effect that all the wheels were on the pavement, and that the rear end of the truck was near to but did not reach the center of the pavement. While Bailey was putting up the curtains, the logging truck of the defendants Austin and wife, driven by the defendant Riggin, appeared in sight, going with a load of logs in the same direction that the Eads truck was going; that is, toward Shelton. The place where the Eads truck was stopped was on a straight and practically level piece of road. The logging truck carried a trailer and was loaded with about 2,000 feet of logs. Its driver saw the Eads truck, blew his whistle, and waved to Bailey to get the Eads truck farther off the road. Bailey saw the logging truck coming, heard the whistle, and understood the signals which the driver on the logging truck made; but he continued to put up the curtains. The logging truck slowed down and undertook to pass the Eads truck, and in so doing pulled off somewhat onto the left-hand gravel shoulder, but struck the Eads truck a side glance, caused it to move forward and sidewise a little and then turn over into a ditch, thereby breaking Mr. Murray's neck. The latter, at the time of the injury, was sitting in the driver's seat.

There was a verdict for the plaintiff against all of the defendants. Only Mr. Eads and his wife have appealed. Many assignments of error are made, and among the rest the refusal of the trial court to grant a nonsuit and to grant the appellants' motion for judgment notwithstanding the verdict.

We pass over a number of assignments of error and go at once to one which, it seems to us, unfortunately for respondent, is decisive against him.

The trial court did not expressly determine what was the relationship of the deceased to the truck. That is, was he a trespasser, a licensee, an invitee, a passenger for hire, or a mere guest? It seems to us that it is necessary to come to a conclusion on this branch of the case, for without so doing we cannot determine what legal obligation the appellants owed the deceased. The jury was told that appellants were bound to exercise ordinary or reasonable care. For this reason it is plain that the trial court did not consider the deceased a passenger for hire, because, under well-known rules of law, if he were such, then appellants' duty toward him would be to exercise a degree of care much greater than ordinary or reasonable care. It is plain that the deceased was not a trespasser, because he was riding with the knowledge and apparent consent of the driver of the truck. We are also of the opinion that he was not a passenger for hire. There is nothing in the record to show that he paid or expected to pay for his own transportation. It merely shows that he hired the appellants to transfer his trunks from Olympia to Shelton, and that he got in the car without invitation. Further, this truck was not built for carrying passengers, nor is there any showing that at any previous time it had carried any; and under the laws of this state it would not be authorized to carry passengers for hire without having a permit from the state so to do, and it seems to be conceded that it did not have any such permit. It will not be presumed that appellants knowingly violated the law and carried a passenger for hire when they were unauthorized so to do. Merely hiring appellants to haul his trunks would not make him a passenger for hire. It seems to us that the deceased was a mere 'guest,' riding in the truck at his own invitation but with the consent of the driver, and for his own benefit and convenience. In his brief learned counsel for respondent says that----

'The automobile was engaged solely to take his (the deceased) trunks to Shelton and not to take him. The deceased was allowed to ride merely as an accommodation to himself.'

If so, then he must have been a guest, and appellants owed him just such amount of care as any guest is entitled to receive.

Since this case was tried in the lower court, we have handed down a decision to the effect that the driver of an auto is not liable for injury to his guest unless there has been gross negligence or wanton injury. Saxe v. Terry (Wash.) 250 P. 27. Under the rule of that case, the appellants were required to exercise only slight care toward deceased and would be liable only for gross negligence. These questions, then, arise: Under the facts most favorable to respondent, can the court say as a matter of law that appellants' driver was not guilty of gross negligence, or should that matter have been submitted to the jury?

Section 6347, Rem. Comp. Stat., provides that it shall be unlawful for any person to leave any vehicle standing upon the main traveled portion of any highway. The rule in this court is that a violation of the express provisions of a statute is negligence per se. If we assume, as we shall, that the driver made no effort whatsoever to get his truck off of the road but left it standing on the paved highway, then it must be conceded that he was guilty of...