Lloyd v. Northern P. Ry. Co.

• Decision Date: 13 May 1919
• Docket Number: 15193.
• Citation: 181 P. 29,107 Wash. 57
• Court: Washington Supreme Court
• Parties: LLOYD v. NORTHERN PAC. RY. CO.

181 P. 29

107 Wash. 57

LLOYD v. NORTHERN PAC. RY. CO.

No. 15193.

Supreme Court of Washington

May 13, 1919

Department 2.

Appeal from Superior Court, Franklin County; John Truax, Judge.

Action by N.C. Lloyd against the Northern Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Chadwick C.J., dissenting.

Cannon & Ferris, of Spokane, and Edward A. Davis of Pasco, for appellant.

M. L Driscoll, of Pasco, for respondent.

PARKER J.

The plaintiff, Lloyd, seeks recovery of damages for injury to his automobile, claimed to have been caused by the negligent operation of one of the trains of the defendant railway company, at a public crossing in the village of Eltopia, in Franklin county. Trial in the superior court for that county sitting with a jury, resulted in verdict and judgment in favor of the plaintiff, from which the defendant has appealed to this court.

Respondent's automobile was being driven by Richard Colley on Sunday, June 24, 1917, when it was struck by one of appellant's trains, causing the injury thereto for which recovery is sought. For a period of some three months prior thereto Colley had been working for respondent upon his farm situated some two miles distant from Eltopia, under an employment agreement by which Colley was to receive a certain sum per month, and the use of the automobile for his own pleasure, from time to time, as occasion therefore might arise. During the afternoon of the Sunday in question Colley took a young lady for a pleasure ride in the automobile. Just what their destination was is not clear; but upon their return they went a short distance out of their way, with a view on the part of Colley of going through Eltopia and calling upon the railway company's agent there and procuring an express package which he thought might be there for respondent. He had not been instructed by respondent to call for any such package; nor is there anything in the record to show that either he or respondent thought of his calling upon the agent of the railway company for any such package when he started with the automobile. He had, however, on some previous occasions, brought packages from the agent of the railway company, which had been shipped to Eltopia in respondent's name. This he had done without any special instructions from respondent. Upon this occasion Colley received from the agent a package addressed to respondent, and placed it in the automobile, when he and the young lady proceeded in the automobile on their way towards respondent's farm, which rendered it necessary for them to cross appellant's track in Eltopia; and it was while so crossing the track that the automobile was injured by being struck by one of appellant's trains. While the jury returned a general verdict in favor of respondent awarding him damages in the sum of $450, the jury were also asked and answered special interrogatories submitted by the court as follows:

'Interrogatory 1. Was there negligence on the part of the Northern Pacific Railway Company, which negligence was the proximate cause of the damage to plaintiff's automobile? Answer: Yes.

'Interrogatory 2. Was there negligence on the part of Richard F. Colley the driver of the automobile, contributing to the damage to the plaintiff's automobile? Answer: Yes.

'Interrogatory 3. At the time of the collision was Richard F. Colley driving or using the automobile for or on behalf of the plaintiff, N.C. Lloyd, or in connection with the plaintiff's business, or in the course of his employment as an employé of the plaintiff? Answer: No.

'Interrogatory 4. At the time of the collision, was Richard F. Colley driving the automobile for private purposes or for his own pleasure? Answer: Yes.'

A motion for judgment in appellant's favor, notwithstanding the verdict, was timely made by its counsel, the denial of which by the trial court is assigned as error.

The first contention made in appellant's behalf is, in substance, that the evidence conclusively shows that Colley was, at the time of the injury of the automobile, acting in the course of his employment for respondent, so that his contributory negligence thereby became the contributory negligence of respondent preventing his recovery, and that the trial court should have so decided as a matter of law. It seems to us that, under the circumstances here shown, the question whether or not the driving of the automobile at the time it was injured was being done by Colley as the agent and employé of respondent, or was being done by him for his own private purpose and pleasure, was a question for the jury to decide. Aside from the fact that Colley procured from the railway company's agent the package for respondent, and had it in the automobile when it was injured, there seems to be but little room for arguing that he was at that time doing anything other than for himself. And we think the mere fact that he had procured the package just before the automobile was injured, and then had it with him in the automobile, did not so plainly render his driving the automobile at the time it was injured the performance of his duties as respondent's employé that it could be so decided as a matter of law. The jury, we think, might, under all the circumstances, have well concluded that Colley's procuring of the package was a mere matter of accommodation, as if such act had been performed by a neighbor. Our conclusion upon this branch of the case finds support in our decisions in Hammons v. Setzer, 72 Wash. 550, 130 P. 1141, George v. Carstens Packing Co., 91 Wash. 637, 158 P. 529, and Warren v. Norguard, 103 Wash. 284, 174 P. 7.

It is further contended in appellant's behalf that the contributory negligence of Colley, as found by the jury, was in any event imputable to respondent, preventing his recovery, and that the trial court should have so decided as a matter of law. This contention is rested upon the theory that because of the relationship between Colley and respondent with reference to the automobile, though it only be that of bailor and bailee, respondent cannot recover for the injury to the automobile, because Colley's contributory negligence would prevent his recovery for injury to the automobile. There was a time when the decisions of the courts seemed to support this view of the law; but in recent years the weight of authority is we think, decidedly to the contrary.

In view of the special finding of the jury that Colley was, at the time the injury to the automobile occurred, driving it for his own pleasure, and not in the course of his employment as respondent's employé, which finding we think the evidence fully supports, it seems plain that the relation then existing between him and respondent with reference to the automobile was merely that of bailor and bailee. Van Zile, Bailments (2d Ed.) §§ 3 and 4; 6 C.J. 1101; 3 R. C. L. 72. Whether the automobile was in legal effect hired to Colley or gratuitously loaned to him we think is of no moment here, since Colley would be no more the agent of respondent in one case than in the other.

In Gibson v. Bessemer & L. E. R. Co., 226 Pa. 198, 75 A. 194, 27 L. R. A. (N. S.) 689, 18 Ann. Cas. 535, there was involved the hiring of a horse from a livery stable keeper and the killing of the horse by the railroad company while being driven by the bailee. The railroad company resisted the claim of damage made by the owner for the killing of the horse upon the ground of the bailee's contributory negligence in driving upon the track. Holding that the negligence of the bailee was not attributable to the bailor, the owner of the horse, preventing his recovery, Justice Potter, speaking for the court, observed:

'And in Edwards on Bailments (3d Ed., 1893) § 392, it is said: 'The hirer of wagons, or carriages and horses, receiving them into his custody to be used by him at his pleasure, becomes a bailee, and is in no sense a servant of the owner. He is responsible to the owner for the reasonable care of them, and to third persons for any negligence of his servants in the use of them. He is liable to third persons to the same extent as if he were the actual owner of the vehicles and teams used by him.' And again, in 1 Thompson on Negligence (1901) § 512, it is said: 'Unless the principles upon which the courts have at last settled have been grossly misconceived, the negligence of a bailee or his servants is not imputable to his balior.' As far back as the case of Bard v. Yohn, 26 Pa. 482, Justice Knox stated the law as follows (page 489): 'If one lets or hires to another a horse to be used exclusively for the purposes of the latter, the owner of the horse is in no wise responsible for the negligent manner in which the horse may be used.'

'There is a difference where the owner sends a driver to manage and control the team and vehicle; for in so doing the owner retains the control, and may well be held accountable for the action of the driver, his servant and agent. But in the present case no driver was furnished, and the hirer assumed the care and control of the horse. There was no relation of master and servant or of principal and agent between the hirer and the liveryman, and the latter cannot be held responsible for the negligence of the former. Each must recover in his own right, if at all, and each must stand upon his own ground. Had Lantz, the hirer, brought suit and shown negligence by the defendant, and no negligence upon his own part, he could have recovered for damage to himself, but not for damage to the horse or vehicle. His right of action depended in no way upon that of the present plaintiff, nor does the right of recovery in the present action depend upon the right of the bailee to recover.'

In New York, L. E. & W. R. Co. v. New Jersey Elec. R Co., 60...