Link v. Miller
Citation | 300 P. 1105,133 Kan. 469 |
Decision Date | 03 July 1931 |
Docket Number | 29,991 |
Parties | DAISY M. LINK, Appellee, v. F. P. MILLER, W. B. DAVIES and BERNICE DAVIES, Appellants |
Court | Kansas Supreme Court |
Decided July, 1931.
Appeal from Montgomery district court; JOSEPH W. HOLDREN, judge.
Judgment affirmed.
SYLLABUS BY THE COURT.
1. AUTOMOBILES--Injury to Occupant--Liability of Operator--Joint Enterprise. The fact that several people are riding in a car bound for a common destination and for a common purpose does not necessarily make the journey a joint venture, so as to impute the negligence of the driver of the vehicle to all the passengers. There must be in addition a mutual privilege of direction and control.
2. SAME--Joint Enterprise--Jury Question. The question of whether one of a party riding in an automobile is engaging in a joint venture with the driver, or is his guest, is for the jury and must be decided from all the surrounding facts and circumstances.
3. SAME--Injury to Occupant--Contributory Negligence--Failure to Act. Where a passenger in an automobile could not see her apparent danger till a few seconds before the collision which caused her injury occurred, and the evidence showed that any efforts which she might have made to avoid the injury would have been unavailing, her failure to do anything to prevent the collision is not such contributory negligence as to bar her recovery of damages for injuries sustained therein.
Dallas W. Knapp, Carl Ziegler, Charles E. Welch, all of Coffeyville and Grant Waggoner, of Baxter Springs, for the appellants.
Harold McGugin, of Coffeyville, for the appellee.
This is an action to recover damages for injuries suffered in an automobile collision. Plaintiff recovered. Defendants appeal.
The facts are simple. Appellee was riding in the rear seat of an automobile. Appellant Miller was driving the car east on highway 166. His wife, the sister of appellee, was in the front seat with him. The brother of Mrs. Miller and Miss Link had died at a town in Missouri. They were on the way to the funeral. The day before, Mrs. Miller, who lived at Coffeyville, had called up Miss Link, who lived in Oklahoma. She told her that if she would come to Coffeyville on the train they would take her to the funeral and bring her back to Coffeyville. When the car reached the intersection of highway 166 with highway 7 a collision occurred between it and a car driven by appellant, Bernice Davies, which was being driven east thereon. Both cars were traveling at the rate of from thirty to thirty-five miles an hour when the collision occurred. Miss Link was injured. She brought suit against F. P. Miller, who was driving the car in which she was riding, and Bernice Davies, who was driving the other car, and her father, W. B. Davies, who was riding with her. The jury returned a general verdict for plaintiff against Mr. Miller and Bernice Davies. It excused W. B. Davies from liability. It also answered special questions as follows:
Appellants contend that the judgment should be reversed because, first, appellant Miller and appellee were engaged in a joint venture when the injury occurred and that the negligence of Miller in driving upon the intersection at an unlawful rate of speed is attributable to appellee; second, that appellee was guilty of contributory negligence, which caused her injury; and third, that the negligence charged by appellee in her petition and found by the jury was not the proximate cause of the injury. The other questions raised will be settled when we have answered the above.
As to the contention of appellant that Miss Link and Mr. Miller and his wife were engaged in a joint venture, the jury answered that in the negative. No complaint is made of the instructions under which that was submitted. The evidence was that Mrs. Miller had called her sister and invited her to come to Coffeyville and ride to the funeral with them. There is no evidence that she was bearing any of the expenses. She was riding in the back seat. The evidence that she had any control over the management or direction of the car was very meager. Appellant calls attention to the fact that all were on their way to the funeral. He argues that since they were on the journey for a common purpose the venture was a joint one. The fact, however, that the trip upon which people are engaged has a common purpose is not conclusive upon the question of joint venture. All the surrounding facts and circumstances must be considered. The decision turns upon whether there was mutual purpose and equal privilege of direction and control and whether they were traveling in the same vehicle in pursuit of a common object. (Anthony v Kiefner, 96 Kan. 194, 150 P. 524, and cases there cited.) The instruction under which this question was submitted to the jury was drawn upon that theory. The jury answered the question in the negative. There was ample evidence to warrant it in reaching that...
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