Rosenstrom v. North Bend Stage Line

• Decision Date: 27 September 1929
• Docket Number: 21740.
• Court: Washington Supreme Court
• Parties: ROSENSTROM v. NORTH BEND STAGE LINE et al.

280 P. 932

154 Wash. 57

ROSENSTROM v. NORTH BEND STAGE LINE et al.

No. 21740.

Supreme Court of Washington

September 27, 1929

Department 2.

Appeal from Superior Court, King County; Malcolm Douglas, Judge.

Action by Edwin Rosenstrom, by Albert Rosenstrom, his guardian ad litem, against the North Bend Stage Line and another. Judgment for plaintiff, and defendants appeal. Reversed and remanded for new trial.

Poe Falknor, Falknor & Emory, of Seattle, for appellants.

Vanderveer & Levinson, of Seattle, for respondent.

FULLERTON J.

The minor respondent, Rosenstrom, brought this action to recover for personal injuries received in a collision between an automobile in which he was riding and a passenger stage operated by the appellant North Bend Stage Line. There was a trial by jury in the court below, in which a verdict was returned in favor of the respondent. From the judgment entered on the verdict, the appeal is prosecuted.

The accident which caused the injury occurred on a public street of the city of Renton. Morris street, in that city, extends north and south, and a street called Third avenue extends east and west, the streets intersecting at right angles. Abutting upon Morris street, some 600 feet north of its intersection with Third avenue, is a public school, at which the respondent and one Peter Baffaro attended as students. Both were members of the school's football team. The school usually dismissed at 3:30 o'clock in the afternoon. On the day of the happening of the injury however, the respondent and Baffaro, with a number of other students, were excused from further attendance at the school on that day at 3 o'clock, in order that they might engage in football practice. When the respondent and Baffaro went to their lockers for their football clothes, each discovered that he had left the key to his locker at his home. Baffaro had ridden to the school in an automobile which was then parked in front of the school grounds, and, when he discovered that he did not have the key to the locker, he said to the respondent that he was going after it, and would take the respondent along with him, if he desired to go, and would drive him to his own home, so that he could get the key to his own locker. The respondent and Baffaro then got into the automobile and proceeded towards Third avenue, Baffaro driving. As they approached the avenue, the stage of the appellant was proceeding westerly along it, and the vehicles collided at the westerly side of the intersection, or perhaps a short distance beyond its westerly side. Both drivers tried to avoid the collision by turning away from each other, but in spite of the efforts the automobile crashed into the side of the stage.

Third avenue was designated as an arterial highway, and vehicles driven along it had the right of way over vehicles entering it from intersecting highways. Laws 1927, p. 801, c. 309, § 40. The public authorities, however, had not placed the usual stop signs at the intersection.

The first question the record orderly presents is whether Baffaro, the driver of the automobile in which the respondent was riding, was guilty of negligence as matter of law. That he was so guilty, we think there is hardly room for doubt. Under the statute, it was his mandatory duty to give way to the approaching stage, and this duty he disregarded. He drove his automobile into the highway immediately in front of the stage, making a collision all but inevitable. It is true he testified that he did not see the stage until it was almost upon him, although he looked in the direction from which it was approaching before he entered the street. But this does not relieve him from a charge of negligence. The stage was an object of considerable size. It was in the broad light of the day. After he reached the margin of the street, there were no intervening objects between him and the stage, and, if he failed to see it, it is evident that he did not look with that degree of care the law requires. The statute cited was enacted in the interests of the public good. Its purpose is to facilitate traffic on the public highways and prevent accidents thereon. It is the duty of every user of the highway to give it heed, and it would seem that under no circumstance would its disregard be justifiable.

Since the driver of the automobile in which the respondent was riding was guilty of negligence, the appellant contends that the respondent must likewise be held guilty of negligence. The contention is founded on the claim that the driver and the respondent were engaged in a joint adventure, in which the negligence of the one is necessarily imputed to the other. But we agree with the trial court in its holding that the respondent was an invitee of the driver, rather than engaged in a joint adventure with him. As we pointed out in State ex rel. Ratliffe v. Superior Court, 108 Wash. 443, 184 P. 348, the authorities have not laid down any very certain rule from which it can be determined whether the given acts or conduct of two or more persons will or will not constitute them joint adventurers, but have rather contented themselves with a consideration of the particular facts of the case before them. There are, however, certain general principles connected with the relation which have received recognition. The relation, as a legal concept cognizable by the courts, must have its origin in contract. There must be an agreement to enter into an undertaking in the objects or purposes of which the parties to the agreement have a community of interest and a common purpose in its performance. Necessarily the agreement presupposes that each of the parties has an equal right to a voice in the manner of its performance, and an equal right of control over the agencies used in its performance. One or more of the parties may, of course, intrust performance to another or others, but this involves only the law of agency; his rights in the ultimate result and his liabilities for negligent or wrongful performance remain the same.

The facts here shown do not bring the actors within these principles. While each found himself in the same situation when he sought to open his locker, the situation did not present a community of interest. The one had no interest, as that term is understood in the law of joint adventure, in procuring the key of the other, and in going for them their purpose was in no sense common or joint, but rather separate and independent. Nor did the respondent have an equal right with the driver of the...