Ryan v. Snyder

• Citation: 29 Wyo. 146,211 P. 482
• Decision Date: 06 January 1923
• Docket Number: 1042
• Parties: RYAN v. SNYDER
• Court: Wyoming Supreme Court

211 P. 482

29 Wyo. 146

RYAN v. SNYDER

No. 1042

Supreme Court of Wyoming

January 6, 1923

ERROR to District Court, Converse County; HON. RALPH KIMBALL Judge.

Action by Mrs. W. H. Snyder against D. W. Ryan and another for injuries received as a result of alleged negligence on the part of defendants in the operation of an automobile. Heard on the sufficiency of plaintiff's petition.

Judgment affirmed.

Hagens & Murane and Floyd E. Pendell, for plaintiffs in error.

The petition discloses a joint enterprise between plaintiff and defendants in setting out upon a journey for the purpose of inspecting a rooming house that plaintiff had rented from defendants; if there was a joint enterprise on the part of the parties then the negligence of one is imputable to the other and the plaintiff would not be entitled to recover damages. (Lauson v. Town of FonduLac, 123 N.W. 629; Granger v. Farrant, 146 N.W. 218; Kenneshaw v Detroit United Ry. Co., 135 N.W. 903; Washington &amp O. D. Ry. v. Zell's Adm'x., 88 S.W. 309; Derrick v. S. L. O. Ry. Co., 168 P. 335; Lawrence v. D. & R. G., 174 P. 817; Wentworth v. Waterburry, 96 A. 334; Beaucage v. Mercer, 92 N.E. 774; Lechhead v. Jensen, 129 P. 347; Berry on Automobiles, pp. 365-366.) The rule applied to persons engaged in a joint enterprise in the use of an automobile, is that the contributory neglect of one is a bar to recovery by the other, if it be within the scope of a joint undertaking. (2 R. C. L. Sec. 43, p. 1208; Beaucage v. Mercer, 92 N.E. 774, 138 A. S. R. 401; Hampel v. Detroit, Etc. R. Co., 110 A. S. R. 280; Washington & O. D. Ry. v. Zell's Adm'x., 88 S.E. 309.) The question of joint enterprise is one for the court and an order for a directed verdict should have been given. (Wentworth v. Town of Waterbury, 96 A. 334.) Where a number of traveling men arranged with the owner of a car to reach their destination by the use of the car, sharing the expenses between them, the negligence of the owner and driver was imputed to all. (Derrick v. S. L. & O. Ry. Co., 168 P. 335; Atwood v. Ry. Co., 140 P. 137; Martindale v. O. S. L. R. Co., 160 P. 275; Lawrence v. Denver & R. G. R. R. Co., 174 P. 819; Berry on Automobiles, p. 364; Railway v. Bowles, 24 S.E. 388.) Plaintiff assumed whatever risk was incident to reckless driving of the car after having an opportunity to leave the car and failing to do so.

S.E. Phelps, for defendant in error.

The petition does not disclose a joint enterprise; there was no community interest in the operation of the car and plaintiff had no voice in its control, management or operation. (Cunningham v. City of Thief River Falls, 84 Minn. 21, 86 N.W. 763; Town of Knightstown v. Musgrove, 116 Ind. 121, 18 N.E. 452; Derrick v. S. L. & O. Ry. Co., 168 P. 335.) The authorities cited by plaintiffs in error, of course, state the rule as to imputed contributory negligence, where a joint enterprise is shown, but under the facts in the present case it has no application. For example: A husband and wife driving to town to purchase family supplies are not engaged in a joint enterprise in the sense that his negligence as a driver can be imputed to her. (Hojsek v. Chicago etc. R. R. Co., 94 N.W. 609.) A similar illustration may be found in Kopletz v. St. Paul, 90 N.W. 794, and in Martindale v. Ry. Co., 160 P. 275. Lawrence v. D. & R. G. R. R. Co., cited by plaintiffs in error, turned upon contributory negligence and not upon a joint enterprise and imputed negligence. The evidence is not before this court. The case is here on a question as to the sufficiency of the petition. Defendant in error is entitled to maintain this action and recover damages. Secs. 4975, 4976, 4978 C. S. and this, even though her husband is not joined with her in the suit. It was the duty of plaintiffs in error to so manage the automobile while defendant in error was riding in it, as not to increase the danger either by violation of that duty toward her or by violating the law, and defendant in error had a right to rely upon the performance of that duty and an obedience of the law by plaintiffs in error and in so relying she was not negligent. (Ellis v. Traction Co., 174 P. 407; Morenox v. Traction Co., 18 P. 800; Central Ry. Co. v. DeBusley, 261 F. 561.) If plaintiffs in error by the exercise of care could have avoided the injury they are liable. (Thorpe v. Co., 175 P. 240; Larkin v. Beach Co., 83 P. 686; Johnson v. Evans, 170 N.W. 220.) The special defenses of assumption of risk and contributory negligence were not pleaded by plaintiffs in error. (20 R. C. L. 183; C. B. & Q. R. R. Co. v. Cook, 18 Wyo. 43, 102 P. 657.) Plaintiffs in error were obligated to exercise care. (20 R. C. L. 43; Sherman & Redfield on Negligence, Sec. 59; Ebling v. Nielson, 186 P. 887.) The motion for new trial was filed out of time and was properly stricken. (Casteel v. State, 9 Wyo. 267, 62 P. 348; Boswell v. Bliler, 9 Wyo., 277, 62 P. 350; Todd v. Peterson, 13 Wyo. 513, 181 P. 878; Blonde v. Merriam, 21 Wyo. 513, 133 P. 1076.)

RINER, District Judge. BLUME, J., and METZ, District Judge, concur. Potter, C. J., being ill, and Kimball, J., being disqualified, did not sit, and District Judges P. W. Metz and William A. Riner were called in to sit in their stead.

OPINION

RINER, District Judge.

This is an action for negligence based upon the claim that the defendants, who were operating an automobile on a trip from Glenrock, Wyoming, to Lusk, Wyoming, were negligent in such operation, which negligence caused injuries to the plaintiff. An amended petition was filed in the cause, and a general demurrer interposed thereto. This being overruled the issues in the case were made up, trial was had to a jury, and a verdict was rendered in favor of the plaintiff, defendant in error here. Upon this verdict the judgment was duly entered, review of which by this court is sought in this proceeding.

No bill of exceptions presenting the testimony and evidence taken in the cause appears in the record, and the sole question to be determined here, under the assignments set out in the petition in error, is whether the amended petition states facts sufficient to constitute a cause of action as against the defendants.

The following situation is disclosed by the amended petition; On May 18th, 1918, an agreement was entered into between the defendant in error, hereinafter referred to as the plaintiff, and the plaintiff in error D. W. Ryan, one of the defendants below, that the plaintiff should rent from the said Ryan certain property situated in Lusk, Wyoming, on certain terms in the amended petition set out. It is then alleged in the amended petition:

"that said defendant promised to go to Lusk, Wyoming, on May 20, 1918 and turn said property over to the plaintiff, and invited plaintiff and her two daughters to accompany him, which invitation was accepted by them. That thereafter on May 20, 1918, acting upon said arrangement between plaintiff and the defendant Ryan whereby plaintiff was to occupy said property in Lusk, Wyoming, and the said invitation of the defendant Ryan for plaintiff and her daughters to accompany him to Lusk, Wyoming, the plaintiff and her two daughters and each of the defendants aforesaid started from Glenrock, Wyoming, to Lusk, Wyoming, in a five-passenger Ford automobile furnished by the defendants or one of them, over a public highway used for travel between said places, which automobile was driven at all times on said trip by the defendant R. E. Dea."

Following these allegations, it is charged that during the course of the journey the automobile was negligently and carelessly driven by the defendant, Dea, through driving the same at a speed "in reckless disregard for the life and limb of the occupants of said automobile," and generally that the driving was handled in such a negligent, careless and reckless manner, which is described in some extended detail, that the automobile was overturned, plaintiff was thrown out, and suffered injury. The extent of the injuries and sundry damages are then pleaded, as well as the duty of the defendants and each of them to operate and manage the automobile so as not to injure the plaintiff.

The ground on which it is claimed that the petition fails to state a cause of action, and because of which the judgment should be reversed, is that the amended petition discloses a joint enterprise on the part of the plaintiff and the defendants. The rule of law is then invoked that where parties are engaged in a joint enterprise each is acting as the agent for the other, and the negligence of one is imputed to the other. Consequently it is urged that neither of the parties could recover damages for injuries incurred through the negligence of any of the others. A number of cases are cited in support of this contention, most of which will be found upon examination to be actions against third part...