Sanderson v. Hartford Eastern Ry. Co.

• Decision Date: 05 December 1930
• Docket Number: 22684.
• Citation: 159 Wash. 472,294 P. 241
• Court: Washington Supreme Court
• Parties: SANDERSON v. HARTFORD EASTERN RY. CO.

294 P. 241

159 Wash. 472

SANDERSON v. HARTFORD EASTERN RY. CO.

No. 22684.

Supreme Court of Washington

December 5, 1930

Department 2.

Appeal from Superior Court, Snohomish County; Ralph C. Bell, Judge.

Action by Robert Sanderson, Sr., against the Hartford Eastern Railway Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

Coleman & Fogarty and W. P. Beel, all of Everett and Grosscup, Morrow & Wallace, of Seattle, for appellant.

Vanderveer Beardslee & Bassett, of Seattle, for respondent.

BEALS J.

Robert Sanderson, Sr., the plaintiff in this action, whose home is at Edmonds, recovered judgment upon the verdict of a jury against defendant for personal injuries suffered by him as the result of a collision between an automobile in which plaintiff was riding, the property of and driven by plaintiff's son Samuel Sanderson, and a gasoline-driven motor car operated by defendant on its railway track in Snohomish county; the accident occurring at the point where the main highway between the village of Robe and the town of Granite Falls crosses defendant's railway.

For a week prior to the accident, plaintiff and his wife had been camping near the village of Robe; they having driven to the camping ground in their automobile, operated by plaintiff. The day before the accident, plaintiff's son, together with his family and his sister-in-law and her family, had driven to the camp in their respective automobiles for a short visit, and probably with the intention of escorting the old folks on their return home. When the visitors were preparing to leave, plaintiff's son suggested to plaintiff that another member of the party drive plaintiff's car and that plaintiff ride home in the son's car so that plaintiff might be relieved from the burden of driving and that father and son might enjoy each other's society during the trip. This suggestion being adopted, the machines proceeded; plaintiff riding in Samuel's car, occupying the front seat with his son, who was driving, the rear seat being occupied by two of the plaintiff's grandchildren. At the time of the accident, the automobile was traveling towards the south, while the gas car operated by defendant was approaching the crossing proceeding in an easterly direction.

Defendant's railroad track is of standard gauge, and was constructed some years ago for use as a regular railroad track in the operation of steam locomotives and cars. Where it crosses the highway in question, the track is about 6 feet higher than the general elevation of the surrounding terrain, which is practically level. The highway approaches the crossing at each side on a grade of approximately 10 per cent. On the south side of the track there stood a crossing sign about 8 feet high, visible from either side of the track. This sign was on the side of the track opposite to that from which the car in which plaintiff was riding was approaching the track; there being no sign giving warning of a railroad crossing on the north side thereof. At the time of the accident some brush and weeds were growing along the side of the track, the exact height of this brush being in dispute. Defendant was operating along its railway track a gasoline-driven motor car, being an automobile made over for use on the rails. This car was drawing a trailer, and was running up a grade of approximately 2 per cent., and, as defendant contends, at the rate of approximately 25 miles per nour. The car was equipped with an ordinary automobile horn, but had neither bell nor whistle. Testimony introduced by defendant indicated that, before reaching the crossing, defendant's motorman sounded the horn; he testifying that the first signals were given about 700 feet from the crossing, and that later, when he saw the automobile in which plaintiff was riding, he sounded the horn continuously. Defendant's gas car and the automobile collided at the crossing, the automobile being turned over and the gas car derailed. As the result of the accident, plaintiff suffered severe injuries; the jury by its verdict allowing him $8,500. The verdict was reduced by the trial court, on motion for a new trial, to $6,500 for which amount judgment was entered against defendant. From this judgment defendant appeals.

Appellant assigns error upon the ruling or the court in denying its motion for judgment of dismissal; in refusing to instruct the jury to render a verdict in favor of appellant; in giving certain instructions to the jury; and in refusing to instruct the jury as requested by appellant.

In the first place, appellant contends that respondent's son, the driver of the automobile, was clearly guilty of negligence, and that such negligence should be imputed to respondent, who, for that reason, should be precluded from recovering judgment against appellant. Assuming for the purposes of the argument that the driver of the car in which respondent was riding was guilty of negligence, such negligence will not be imputed to respondent, unless such a situation existed as in law makes the driver respondent's agent and, for that reason, bars respondent from recovery because of his agent's negligence. The question of imputed negligence, considered in connection with actions for damages instituted by a passenger in an automobile who has been injured as a result of a collision between the automobile and another vehicle, is one of considerable difficulty. In order to hold that the negligence of the driver is to be imputed to the passenger, it must appear that the relation of principal and agent existed between the persons, which relation must, of course, be founded upon contract, either express or implied. This court, in the case of Rosenstrom v. North Bend Stage Line, 154 Wash. 57, 280 P. 932, 934, in considering this question, said: '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 evidence before us fails to disclose the elements of a 'joint adventure,' or any facts which constituted Samuel Sanderson in law respondent's agent for the purpose of driving Samuel's automobile. In the suggestion made by respondent's son that respondent ride home in the son's car, and in the acceptance of this invitation by respondent, it is clear that respondent entered upon this journey as a mere invitee, and not as a joint adventurer, and that therefore the negligence of the driver of the car should not be imputed to respondent, and that such negligence, if any there was, is not a bar to respondent's recovery of damages against appellant. Under the evidence it is entirely immaterial whether or not Samuel Sanderson drove to Robe for the sole purpose of bringing his father home, or whether that was one of several objects of the trip, or whether that plan was never thought of until the party proceeded to break camp. One may be no less a guest even though the host has gone a long way to invite him to ride and the ride may be a very great convenience to the guest. Such a circumstance might, under a different state of facts, have some bearing and be properly considered in determining the relation between the parties, but it has no probative force here.

In the next place, appellant contends that respondent was himself guilty of contributory negligence, and that it must be held as matter of law that respondent cannot recover damages for his injuries against appellant. While it is true that under certain circumstances a person riding in an automobile as a guest may, because of his failure to observe existing physical facts which should warn him of approaching danger, be guilty of contributory negligence, and thereby precluded from recovering judgment for damages on account of injuries to person or property suffered by him as the result of the negligence of another, we do not find that in the case by bar ...