Lawrence v. Sioux City

Citation172 Iowa 320,154 N.W. 494
Decision Date26 October 1915
Docket NumberNo. 30399.,30399.
PartiesLAWRENCE v. SIOUX CITY.
CourtUnited States State Supreme Court of Iowa

OPINION TEXT STARTS HERE

Appeal from District Court, Woodbury County; George Jepson, Judge.

Action to recover damage to the estate of Dorothy B. Lawrence, consequent upon her negligent death, resulted in a verdict and judgment for the plaintiff. The defendant appeals. Affirmed.Schmidt & Pike and Sam Page, all of Sioux City, for appellant.

Shull, Gill, Sammis & Stilwill and U. G. Whitney, all of Sioux City, for appellee.

LADD, J.

In the evening of January 2, 1913, John M. Knott arranged with the deceased, Dorothy B. Lawrence, and Martha Whitney, to take them in an automobile to their homes, after choir practice at St. Thomas Episcopal Church in Sioux City, and thereafter invited Brooks Carry to accompany him. Each of the party was about 18 years of age. They started from opposite the church, and after passing along several streets moved north on Myrtle street. A gully 20 feet wide and 18 feet deep extended across this street, over which there was a bridge somewhat west of the center. The street had been graded to within about 30 feet of the gully, and at the end of the grade the traveled way swerved to the west before crossing the bridge. The driver, as he approached, observed the east railing of the bridge, and, owing to its location, supposed it to be on the west side, and that he was driving toward the bridge. The night was dark, and there were no lights or barricades, and when Knott first noticed that he was east of the bridge the car was so near the gully that he could not stop before being precipitated to the bottom of the gully, thereby causing the death of Dorothy B. Lawrence and serious injuries to Martha Whitney.

That the evidence was such as warranted a finding that the city was negligent is not questioned. It is contended, however, that the court erred in several rulings, one of which was in not directing the jury that the parties were engaged in a joint enterprise, and that any negligence on the part of the driver, Knott, should be imputed to decedent. The jury was correctly instructed with regard to her duty to care for herself, and thereafter told that, if she “had or assumed the right to direct or control the operation of the said automobile, and you further find that the driver of the automobile, John Knott, was guilty of negligence contributing to the injury of plaintiff's intestate, then the negligence, if any you find, of the driver, John Knott, will be imputed to plaintiff's intestate, and the plaintiff cannot recover herein.” The converse also was stated.

[1] No exception to this instruction was saved, and for this reason, we might well pass over the contention that decedent was engaged with Knott in a joint enterprise, and therefore that his negligence, if any, should be imputed to her. It is to be said, however, that the record is utterly without evidence of such joint enterprise. She rode with him in the car solely upon his invitation. The express purpose was to take her home, and there was no evidence to the contrary, save that a roundabout way was chosen, with the manifest design of carrying Martha Whitney home first. “The longest way around is the shortest way home” with young people on such occasions, and the mere fact that a pleasure ride was taken on the way did not obviate what all parties testified was the purpose of the automobile ride. True, decedent persuaded Martha Whitney to remain at her home in order to accompany her to choir practice, with the understanding that Knott would take them home in an automobile; but this latter was on the proposal and invitation of Knott, when decedent was urging Martha to remain with her. Both were taking the ride at his invitation, and there was no evidence from which it might have been inferred that any of the three riding with Knott was to or did control, or assume to control, the operation of the automobile in any respect. Of course, when one, at the invitation of another, goes riding, they are in a sense carrying out a common enterprise; i. e., that of riding. There must be something more, however, to constitute a joint enterprise, such as will render the party accepting the invitation responsible for the conduct of the driver. The guest must be in a situation to assume the control, or control in some manner the means of locomotion. See Hubbard v. Bartholomew, 144 N. W. 13. Here the decedent had nothing to do with the direction in which the automobile was moving, or the route over which it passed, or the operation of the machine, and did not in fact assume, or undertake in any manner to exercise, control over the driver or the car. This being so, the negligence, if any, of the driver, could not be imputed to decedent, who was riding solely as his guest. The case is ruled by Nesbit v. Town of Garner, 75 Iowa, 314, 39 N. W. 516, 1 L. R. A. 152, 9 Am. St. Rep. 486, and Withey v. Fowler Co., 164 Iowa, 377, 145 N. W. 923, each holding that in such circumstances the doctrine of imputable negligence has no application. See, also, Larkin v. Railway, 85 Iowa, 492, 52 N. W. 480;McBride v. Railway, 134 Iowa, 398, 109 N. W. 618. There was no error.

[2] II. The mother of decedent, after testifyingto facts tending to show talent on the part of her daughter for drawing, and that the latter intended to prepare herself for supervisor's work in that department, said that she knew what the salary of a teacher engaged in such work in Sioux City was, and she was then asked to state such salary, and over objection, “as incompetent, irrelevant, and immaterial, and not a proper basis under the state of the record for the measure of damages,” answered, “The salary at the present time is $1,200 per year.” On cross-examination, she explained that she had obtained her information from the principal of one of the graded schools and from the statistics of the Sioux City schools. Defendant moved that her testimony with reference to the amount of compensation of an instructor of drawing be stricken, as “incompetent, irrelevant, and immaterial, too indefinite, and not founded upon any material fact upon which such statement might be based, and not a proper basis for the measure or appraisement of damages.” The court overruled the motion. It is not questioned but that the evidence was competent as bearing upon the earning capacity decedent might have had had she lived. Eginoire v. Union Co., 112 Iowa, 558, 84 N. W. 758;Gregory v. Railway, 126 Iowa, 230, 101 N. W. 761;Nolte v. Railway Co., 165 Iowa, 721, 147 N. W. 192.

[3] What appellant insists upon is that the witness was not qualified to testify; but that point was not raised by the objection, or in the motion to strike. An objection as incompetent merely goes to the evidence, and not the competency of the witness. Ball v. Railway, 74 Iowa, 132, 37 N. W. 110;State v. Brown, 128 Iowa, 24, 102 N. W. 799.

[4] It is to be said, however, that knowledge of...

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12 cases
  • Kokesh v. Price
    • United States
    • Minnesota Supreme Court
    • March 16, 1917
    ...at the time of the collision? 29 Cyc. 543; Follman v. City of Mankato, 35 Minn. 522, 528, 29 N. W. 317,59 Am. Rep. 340;Lawrence v. Sioux City, 172 Iowa, 320, 154 N. W. 494;Slater v. Burlington, C. R. & N. Ry. Co., 71 Iowa, 209, 32 N. W. 264;Christopherson v. M., St. P. & S. S. M. Ry., 28 N.......
  • Kokesh v. Price
    • United States
    • Minnesota Supreme Court
    • March 16, 1917
    ...the time of the collision? 29 Cyc. 543; Follman v. City of Mankato, 35 Minn. 522, 528, 29 N. W. 317, 59 Am. Rep. 340; Lawrence v. Sioux City, 172 Iowa, 320, 154 N. W. 494; Slater v. Burlington, C. R. & N. Ry. Co. 71 Iowa, 209, 32 N. W. 264; Christopherson v. Minneapolis, St. P. & S. S. M. R......
  • Kokesh v. Price
    • United States
    • Minnesota Supreme Court
    • March 16, 1917
    ... ... 203 F. 644, 122 ... C.C.A. 40, 45 L.R.A. (N.S.) 940; Ohnesorge, Adm. v ... Chicago City Ry. Co. 259 Ill. 424, 102 N.E. 819; ... Harton v. Telephone Co. 141 N.C. 455, 54 S.E. 299; ... City of ... St. Paul, 86 Minn. 373, 90 N.W. 794, 58 L.R.A. 74; ... Cotton v. Willmar & Sioux Falls Ry. Co. 99 Minn ... 366, 109 N.W. 835, 8 L.R.A. (N.S.) 643, 116 Am. St. 422, 9 ... Ann ... Follman v. City of Mankato, 35 Minn. 522, 528, 29 ... N.W. 317, 59 Am. Rep. 340; Lawrence v. Sioux City, ... 172 Iowa 320, ... ...
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    • United States
    • Iowa Supreme Court
    • December 15, 1936
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