Ludberg v. Barghoorn

• Citation: 131 P. 1165,73 Wash. 476
• Parties: LUDBERG v. BARGHOORN.
• Decision Date: 07 May 1913
• Court: United States State Supreme Court of Washington

131 P. 1165

73 Wash. 476

LUDBERG v. BARGHOORN.

Supreme Court of Washington

May 7, 1913

Department 1. Appeal from Superior Court, Spokane County; John B. Yakey Judge.

Action by Charles H. Ludberg against S. Barghoorn. Judgment for defendant, and plaintiff appeals. Affirmed.

Dan Danielson, of Spokane (Heber McHugh, of Seattle, of counsel) for appellant.

Charles P. Lund, of Spokane, for respondent.

MOUNT J.

Plaintiff brought this action to recover for personal injuries. Upon the trial of the case to a jury, after the evidence was all submitted, a challenge to the sufficiency of the evidence was interposed by the defendant. The trial court sustained this challenge and directed a judgment to be entered in favor of the defendant. The plaintiff has appealed.

The facts are as follows: On May 2, 1911, the plaintiff was run over and injured by an automobile belonging to the defendant. It was driven at that time by one Byron Raney. The evidence tended to show that the automobile was being driven, at the time of the accident, at an excessive rate of speed in the city of Spokane, and while the plaintiff was passing a standing street car he was struck by the automobile. The driver, Byron Raney, had been in the employ of the defendant for some time. His duties were to care for the defendant's lawn, do chores around the house, and keep the automobile clean. He sometimes drove the automobile for Mrs. Barghoorn. Upon the day of the injury to plaintiff Byron J. Raney, who was a near neighbor of the defendant, requested the use of the defendant's automobile for the purpose of sending for a doctor to attend his daughter who was critically ill. Byron J. Raney is the father of Byron Raney, who was employed by the defendant. Byron J. Raney, the father of the boy, testified that on that day he was unable to locate the doctor he desired; that he went over to the defendant's house, who lived the next place east, and requested Mrs. Barghoorn to let his son, Bryon Raney, take the automobile for the purpose of looking up the doctor. Mrs. Barghoorn consented that Mr. Raney's son should take the automobile for that purpose. The young man took the automobile and went to the doctor's office, where he found the doctor. He took the doctor in the automobile to his father's house. Thereafter he took the doctor to the doctor's apartments in the city, and on his return met a lady friend upon the street. He took this lady in the automobile to catch a street car which she had missed. They caught the street car several blocks away and the young man then started to return with the automobile to the garage. On his way back he ran over the plaintiff.

Mrs. Barghoorn testified that at the request of Byron Raney's father she loaned him the automobile for the purpose of going for the doctor.

The defendant testified that he did not know anything about the accident until after it had occurred.

The lady friend of Byron Raney also testified to substantially the same facts with reference to being invited to ride in the automobile as were given by Byron Raney. She also testified that she did not know the defendant or his wife at that time. The doctor also testified that the boy came for him with the automobile, took him to his father's house to see the sick sister, and then took him to his apartments.

The evidence established beyond controversy that, at the time of the injury to the plaintiff, the automobile which was driven by Byron Raney was being driven, not for the defendant, but for Byron J. Raney, and that the driver was not then in the employment of the defendant or upon the business of the defendant, but he was upon an errand solely for his father.

The only attempt in the record to dispute this fact were statements made by the defendant some time after the accident under circumstances substantially as follows: The defendant, after learning of the accident, visited the place of the accident and had a conversation with two firemen, whose station was near the place of the accident, for the purpose of learning the facts in regard thereto. One of these firemen, named Wood, testified that the defendant came to the fire station and inquired about the accident and that he and another man by the name of Donaldson went to the scene of the accident with the defendant and showed him how the accident occurred; that he told Mr. Barghoorn about the rate of speed the automobile was going. The witness Wood then testified as follows, referring to Mr. Barghoorn, the defendant: 'He said he was the owner of it (the automobile), and he said that his boy could not have got time to have got up speed from the corner if he was going at the rate of speed that we thought he was going at the time he hit the man. He said that his boy had fetched a friend home and was on his way back. * * * A. The conversation was about the speed that the boy could have got up on his machine. He said that he had only come up to fetch a friend up to the corner and from that corner to our corner would not be time to get up the speed. Q. He said his boy? A. Yes, sir; as I first understood his reference to his son, but they told me not. Q. That is when he said his boy? A. Yes, sir; his boy.'

Mr Donaldson, the other fireman, testified to...