Masterson v. Leonard

• Decision Date: 11 August 1921
• Docket Number: 16446.
• Citation: 200 P. 320,116 Wash. 551
• Court: Washington Supreme Court
• Parties: MASTERSON v. LEONARD et al. (two cases.

200 P. 320

116 Wash. 551

MASTERSON v. LEONARD et al. (two cases.

No. 16446.

Supreme Court of Washington

August 11, 1921

Department 2.

Appeal from Superior Court, Spokane County; A. W. Frater, Judge.

Consolidated actions by Frank Masterson, a minor, by D. L. Masterson, his guardian ad litem, and by D. L. Masterson, against Mrs. James Leonard and another. Judgments for defendants, and plaintiffs appeal. Affirmed.

E. A Cornelius, of Spokane, for appellants.

Lee &amp Kimball, of Spokane, for respondents.

PARKER C.J.

These two actions, though separately commenced and finally disposed of in the superior court by separate verdicts and judgments were by agreement of all parties tried together. The plaintiff Frank Masterson, by his guardian ad litem, seeks recovery of damages claimed as the result of personal injuries suffered by him from the alleged negligent operation of an automobile by the defendants. The plaintiff D. L. Masterson, father of the plaintiff Frank Masterson, seeks recovery of damages claimed as the result of the same alleged negligence on the part of the defendants, which claimed damages are for medical and hospital expenses incurred by him for his son's care, rendered necessary by the injuries received by the son. The trial resulted in verdicts and judgments in favor of the defendants, denying recovery to both of the plaintiffs, from which they have appealed to this court.

The plaintiff Frank Masterson and his companion, Edward Buck, who was with him at the time of the accident, were at the time each 12 years old. They were ordinarily bright and intelligent boys of that age, and were possessed of such experience in the city life of Spokane--wherein the accident happened--as newspaper boys ordinarily possess, and were well acquainted with the conditions of the streets at and in the immediate neighborhood of the accident. Frank was injured in being thrown from a bicycle, on the frame of which he was riding, just behind the handle bars; Edward sitting on the seat of the bicycle, having hold of the handles, and controlling it in the usual manner, save for the fact that he had to reach his arms past Frank, on each side, to the handles. Riding in this manner, the boys coasted west for a distance of two blocks down Fifth avenue, on a descending grade averaging about 9 per cent., and when arriving at the foot of the grade at the intersection of Walnut street were thrown from the bicycle, either by coming into collision with the defendants' automobile, which was at that moment crossing Fifth avenue going south on Walnut street, or by being thrown from the bicycle in an effort on the part of Edward to avoid the collision with the automobile. Frank was quite severely, though apparently not permanently, injured; Edward escaped with but slight injury. The bicycle belonged to Frank's father, but Frank had been riding it for about a year, and he then had it in his possession, with the privilege of using it. All of these facts are undisputed.

In view of the question of the negligence of Edward being imputed to Frank, and thus making such negligence Frank's contributory negligence, presently to be considered, it is necessary that we have a correct view of the evidence touching the relationship of the boys to each other in their undertaking of this hazardous journey in the manner above noticed. Edward testified for the plaintiffs as follows:

'Q. You were with the Masterson boy the day of the collision? A. Yes.

'Q. Where did you come from on that day? A. From our house.

'Q. Where is your home? A. On Fifth avenue, between Jefferson and Adams.

'Q. And what direction from the place of the collision? A. East.

'Q. How far away? A. Two blocks and a half.

'Q. What direction were you going to reach this avenue and Walnut? A. West.

'Q. Just state when--what you did from the time you left until the collision. A. We went up the hill together, and there is a little hill in front of our house that goes up to Fifth and Adams. We started at our house and went to Fifth and Adams; it is about a half a block uphill. We walked up there, and we decided to ride Frank down the hill, and he got on the crossbar, and I got on the saddle, and we started down the hill. There are two hills; we came to the bottom of the first hill, and there was an old lady crossing the road, and we slowed up for her, and then coasted on down to where we bumped into the automobile. * * *

'Q. Where were you going from there? A. For the papers. * * *

'Q. Whose paper route is that? A. It is mine.

'Q. Why was Frank going along? A. He was going to substitute on my route, if I was sick.

'Q. He had been over the route with you before that? A. Yes.

'Q. How many times? A. He used to go off and on.

'Q. And you always got the papers at the same place? A. Yes.

'Q. You always went over, then, in the same way on bicycle? A. Yes.

'Q. Did you have a bicycle? A. Yes.

'Q. Did Frank have a bicycle? A. Yes.

'Q. Whose were you using this night? A. It was Frank's. * * *

'Q. Now you went up to the top of the hill of Adams and Fifth avenue, and you said something to him about whether he could ride you, or you ride him? A. Yes.

'Q. And it finally run to your lot to run the bicycle? A. Yes, sir.

'Q. Now, you got on the saddle, and he got on the crossbars; which way did his feet point? Which way did he face? A. To the left. * * *

'Q. Now, you say you went on down here to Walnut; coasting all the way down, were you? A. Yes.

'Q. Frank was sitting in front of you, and your arms on either side of him, and you had hold of both handlebars? * * * A. Yes, sir.'

This testimony is all of the evidence having any substantial bearing upon the relationship of the boys to each other in their then enterprise or adventure. While Frank testified in the case, his testimony was not in the least in conflict with the facts disclosed by the above-quoted testimony of Edward, and there is no other testimony or circumstance in the case which in the slightest degree points to the relation of the boys to each other, or their purpose in coasting down Fifth avenue upon the bicycle.

It is contended that the trial court erred, in giving its instructions to the jury, in assuming, as claimed by counsel for appellants, that whatever negligence Edward was guilty of in the control of the bicycle was imputable to and became the negligence of Frank, and thus became Frank's contributory negligence. We assume, for argument's sake, that the instructions given by the trial judge in effect so decided this question as one of law; that is, that Edward's negligence in the management of the bicycle became by imputation, as a matter of law, Frank's contributory negligence, clearly leaving to the jury however, the question of whether or not Edward was negligent. In support of this contention, counsel cite and particularly rely upon our decisions in Wilson v. Puget Sound Elec. R., 52 Wash. 522, 101 P. 50, 132 Am. St. Rep. 1044, and Allen v. Walla Walla Valley R. Co., 96 Wash. 397, 165 P. 99. The Wilson Case involved injury resulting in the death of a passenger, who was being carried in an automobile for hire. The Allen Case involved an injury to a guest or companion riding in a buggy, who apparently had no control whatever over the...