Linch v. Dobson

• Decision Date: 17 May 1922
• Docket Number: 21991
• Citation: 188 N.W. 227,108 Neb. 632
• Parties: WILLIAM R. LINCH, APPELLEE, v. GEORGE DOBSON ET AL., APPELLANTS
• Court: Nebraska Supreme Court

188 N.W. 227

108 Neb. 632

WILLIAM R. LINCH, APPELLEE, v. GEORGE DOBSON ET AL., APPELLANTS

No. 21991

Supreme Court of Nebraska

May 17, 1922

APPEAL from the district court for Lancaster county: ELLIOTT J CLEMENTS, JUDGE. Affirmed.

AFFIRMED.

C. M Skiles, for appellants.

Burkett Wilson, Brown & Wilson, contra.

Heard before DEAN, ROSE, DAY and FLANSBURG, JJ.

OPINION

FLANSBURG, J.

This was an action by the plaintiff, Linch, to recover for the damages which were caused to his automobile in a collision with a car, driven by the defendant Paul Dobson. The action was brought against Paul Dobson and his father, George Dobson, the latter being the owner of the car. The verdict and judgment was against both defendants and in favor of the plaintiff. Both defendants appeal.

Defendants contend that the evidence is insufficient to show such negligence on the part of the defendant Paul Dobson which, compared with the negligence of the plaintiff, would sustain a verdict in favor of the plaintiff under the comparative negligence rule. Such of the testimony as was more favorable to the plaintiff, and which, it must be assumed, was followed by the jury, since the general finding was for the plaintiff, shows that the plaintiff, just prior to the accident, was driving north on Fifty-sixth street in the city of Lincoln uphill and over a rough dirt road, and was approaching South street, which extends east and west, is paved with brick, and is a street upon which there is considerable traffic; that at the southeast corner of the intersection of these two streets was a store building, and that as the plaintiff was about to pass in front of the store building he looked beyond it toward the east and saw defendant's car a quarter of a mile distant, coming down the hill on South street toward Fifty-sixth street; that after plaintiff, driving at about 15 miles an hour, had proceeded north on Fifty-sixth street until he had passed the store, he looked again and saw the defendant at that time some 400 to 600 feet distant. Believing that he had plenty of time to cross South street, he proceeded to cross before he realized, he said, the speed at which the defendant was driving. He now estimates the speed at 60 miles an hour. The undisputed testimony shows that the Dobson car, after the brakes were set, slid on its wheels for a distance of over 55 feet; that when it neared the plaintiff's car it was turned slightly to the right, in an apparent effort to avoid collision, and the two cars struck sideways; that the Dobson car continued to slide for a short distance and then toppled over in a westerly direction, being the direction in which it had been going. The plaintiff's car was, by the collision, deflected to the west, and, before it could be controlled, ran into a small frame building, standing on the northwest corner of the intersection. Plaintiff says that the defendant Paul Dobson had with him a young lady, and that they were so close behind the wheel that he believed the young lady was doing the driving. The testimony above referred to is, in most particulars, in direct contradiction to the testimony introduced by the defendant, but, under the plaintiff's version of the case, as above outlined, we are unable to say, as a matter of law, that the case should have been taken from the jury, nor that the plaintiff's evidence is insufficient, under the comparative negligence rule, to support the verdict.

The defendant George Dobson contends that he is not liable, for the reason that the car was being used by his son, for the private purposes and pleasure of the son, and not as an agent for the father. The testimony shows that Mr. George Dobson owned two cars, a larger car and the car which was being driven by Paul Dobson at the time of the accident, a Willys-Knight coupe. Both cars had been purchased and were kept for family use. Though it appears that the coupe was bought especially for the use of Mrs. Dobson Paul was allowed to use it when it was not otherwise wanted, but he was supposed to ask permission. The testimony shows that he had driven the car on a number of other occasions and when no other members of the family were present with him. In the particular instance in question he did not affirmatively ask permission of his mother to use the car; neither is there anything to show that he would have been denied the right had he asked it. It further appears that Paul was 22 years of age. He was, however, living at home as a member of the family and under parental control. In this case, the father's control over the son and the privilege of the son to the use of the car were, in no particular, different than had the son been a minor. The car was one which, there is evidence to show, was kept for the pleasure and convenience of the family. Though there was an understanding that the car was never to be used by Paul when his mother needed it, that is the...