Parks v. Pere Marquette Ry. Co.

• Decision Date: 03 June 1946
• Docket Number: No. 3.,3.
• Citation: 315 Mich. 38,23 N.W.2d 196
• Parties: PARKS v. PERE MARQUETTE RY. CO.
• Court: Michigan Supreme Court

315 Mich. 38

23 N.W.2d 196

PARKS

v.PERE MARQUETTE RY. CO.

No. 3.

Supreme Court of Michigan.

June 3, 1946.

Appeal from Circuit Court, Saginaw County; Robert T. Holland, judge.

Action by Welda Parks, administratrix of the estate of Olds F. Parks, deceased, against Pere Marquette Railway Company, a corporation, for death of plaintiff's decedent caused in a railroad crossing collision. From an adverse judgment, plaintiff appeals.

Affirmed.

Before the Entire Bench.

Walter Martin and Duane S. van Benschoten, both of Saginaw, for appellant.

John C. Shields and William R. Althans, both of Detroit (Weadock & Weadock, of Saginaw, and Edward H. Goodman, of Detroit, of counsel), for Pere Marquette Ry. Co., defendant and appellee.

NORTH, Justice.

This case arises out of an automobile railroad crossing accident in which plaintiff's decedent sustained fatal injuries. On trial by jury the verdict was in favor of defendant. Judgment was entered accordingly. Plaintiff's motion for a new trial was denied. She has appealed.

Because decision of the questions presented on this appeal does not necessitate a full and detailed statement of the factual background, only the abbreviated presentation of facts hereinafter contained is essential. Plaintiff's decedent, Olds F. Parks, at the time of his death was a minor 20 years of age. He owned the Ford two-door sedan involved in the accident. Plaintiff's decedent and a girl companion were occupying the rear seat of the automobile when the accident occurred. The automobile, at the request of decedent, was being driven by Lloyd Turner, then 17 years of age. He did not have a driver's license. In the nighttime of February 18, 1941, the party was proceeding in an easterly direction on Perkins street in the city of Saginaw. In attempting to apss over the tracks of defendant's railway, which extend in a northerly and southerly direction, the automobile was struck on the second or northbound main track by the locomotive of a freight train proceeding in a northerly direction. None of the occupants of the automobile saw the approaching train in time to avoid the accident. The collision resulted in the death of Olds F. Parks, and this suit was brought by the administratrix of his estate.

There was ample testimony bearing upon the issue of defendant's negligence and the contributory negligence of the automobile driver, Lloyd Turner, to present an issue of fact for a jury's determination. In appellant's brief it is stated: ‘In this case, the contributory negligence of Turner, the driver, is a legally contributing cause of Decedent's injuries.’ As noted above, the jury found for the defendant. The errors asserted by appellant have to do only with the charge of the court as given and failure of the court to give requested charges. Appellant contends that the trial court erred in charging the jury as follows: ‘Ordinarily, negligence may not be imputed to a minor. In other words, if a minor is driving or riding in an automobile and the driver of the automobile is negligent, such negligence may not be imputed to this minor. In this case, however, the Court is of the opinion that Olds Parks being of 20 years of age, the owner of the car and an occupant of it, and the car being driven with his permission and by his instructions, if you find that the driver of the car, Lloyd Turner, was negligent in his operation of the motor vehicle, then such negligence will be imputed to Olds Parks and the Plaintiff in this case may not recover. Therefore, if you find from the facts in the case that the driver of the car was guilty of negligence in the manner in which he approached and attempted to cross the tracks of the Defendant at the time in question, then any negligence of the Defendant becomes of no importance and immaterial, because as a matter of fact Plaintiff's Decedent was charged with the negligence of the driver, and you must return a verdict of no cause of action, as stated.'

While the above charge is not literally accurate, it is not erroneous as against any question presented on this appeal. Primarily plaintiff's contention is that in this jurisdiction the negligence of a driver of an automobile has never been imputed to a minor passenger, and that also, by our recent decision in Bricker v. Green, 313 Mich. 218, 21 N.W.2d 105, 111, ‘the rule of imputed negligence * * * has been renounced.’ As to our decision in the Bricker case, plaintiff's construction or interpretation is inaccurate. And later in appellant's brief it is said: ‘It would, perhaps, be unfair and incorrect to say that our Supreme Court has, by the recent case of Bricker v. Green, * * * overthrown completely the doctrine of imputed negligence.’ The holding in the Bricker case did not renounce the so-called rule of imputed negligence in cases where the driver of the car was under the control of the injured passenger. Doubtless in such cases use of the term ‘imputed negligence’ is somewhat lacking in accuracy, and ordinarily might more fittingly be designated as direct contributory negligence of the passenger. In the Bricker case we said: ‘Our holding herein should not be construed as excluding under appropriate circumstances the defense of contributory negligence on the part of the passenger, if relative to the cause of the accident the passenger failed to exercise such reasonable care and caution as he should have exercised under the circumstances.'

Appellant contends that since Olds Parks, the owner of the automobile, was a minor, therefore he was not subject to the rule of imputed negligence. It has been urged that since the owner by reason of his minority was legally incapacitated from entering into a contractual relation of the character involved, the element of legal right to control did not exist. Circumstances may be conceived where that result might follow, but it is not universally true. The law applicable to a given case is dependent on circumstances somewhat similar to those bearing upon whether a minor is of sufficient age and judgment to be charged with contributory negligence. In the instant case the minor-owner, Olds Parks, was 20 years of age and was mentally and physically capable of controlling his automobile. He was a licensed driver. A minor may own an automobile; and if he is of sufficient age and judgment he not only has the legal ability to control its use and operation, but he is legally chargeable with that responsibility. For that reason courts have held that the right of a minor-owner, who is a passenger in his own car and retains his right or control, to recover damages from a third party alleged to have negligently caused such damages present or may present the issue as to whether there was contributory negligence on the part of the driver who with the minor-owner's authority was operating the minor's car.

In some jurisdictions where the general or broad rule of imputed negligence did not prevail, as formerly in this jurisdiction, it has been held that the negligence of a driver is imputable to the adult owner of an automobile who was riding in the car and who had not abandoned his legal right of control. Headnotes in Shuler v. Whitmore et al., 138 Misc. 814, 246 N.Y.S. 528, read:

‘Owner's liability for negligence of another driving automobile while owner was passenger is determinable under commonlaw principles applicable to master and servant and principle and agent relations.

‘At common law, servant's negligence within scope of employment was imputable to master, and barred master's recovery against third persons if servant's negligence contributed to injury.'

By the preponderance of authority a similar rule applies a minor-owner passengers, although seemingly on a theory different than that of agency or master and servant.

‘Many cases hold that the negligence of a driver, while operating a vehicle in such circumstances that an infant riding with him has actual authority to control the conduct of the driver, is the negligence of the infant. (Citing cases.) * * * Those decisions, however, are not based upon agency, nor upon imputed authority to control derived merely from a supposed contract of joint enterprise. They are based upon actual authority to control, exercised through another.’ Potter v. Florida Motor Lines, D.C., 57 F.2d 313, 317.

The opinion in the Potter case cites Atchison, T. & S. F. R. Co. v. NcNulty, 8 Cir., 285 F. 97. In this case the plaintiff was 19 years of age. A headnote of the case reads: ‘Where plaintiff, who was driving a car owned by her father, as she frequently did, invited a young man acquaintance whom she met to...