96 Wash. 397 | Wash. | 1917
— This is an action to recover damages for personal injuries. Respondent, at the time of the accident, was riding in a buggy with his step-son, Mike Pierce. The horse, which was being driven by Pierce, became frightened,
No errors are assigned based upon the admission or rejection of evidence, instructions given or refused by the court, or the insufficiency of the evidence to support the verdict. Counsel for appellant, on page three of their opening brief, make this statement:
“Intending to present to this court the question only as to whether or not, when a verdict has been rendered and judgment based thereon, entered in the consolidated cases upon the same testimony, at the same trial, and by the same jury in favor of the appellant company, the appellant company was not also entitled to a judgment in its favor, notwithstanding the verdict against the defendant and appellant here, we do not deem it necessary to burden this brief with as much of the record of the case as we would otherwise do.”
The concluding paragraph of the brief is as follows:
“We, therefore, respectfully submit that, the verdict and judgment having been rendered in these consolidated actions in favor of the defendant street railway company and against the plaintiff Pierce, the motion made by the defendant company for judgment in its favor as against the plaintiff Allen, notwithstanding the verdict in favor of the plaintiff Allen, should have been granted, and that the judgment appealed from should be reversed, with instructions to the lower court to enter judgment in favor of the appellant and against the respondent.”
Again, in the reply brief, counsel for appellant say:
“On page & of our opening brief we stated that we intended to present to this court only one question, and stated the*399 question. ... We claimed in that brief, and now assign as error, that the lower court erred in not granting our motion for judgment notwithstanding the verdict, in our favor and against respondent, because of the fact that the same jury, empaneled and sworn to try both cases consolidated for that purpose, had, on the same trial and same evidence, decided against plaintiff Pierce.”
Later in the reply brief it is said:
“Respondent contends that the principle of the Doremus case does not control, and we contend that it does, and this is the whole question involved in this appeal.”
Thus it will be seen that appellant’s sole contention is that, inasmuch as the jury trying the consolidated cases returned a verdict against Pierce, the driver of the horse, respondent, who was riding with him in the buggy at the time of the accident, is thereby precluded from recovering in his case, and that the court should so hold as a matter of law. This position is palpably unsound and untenable. Doremus v. Root, 23 Wash. 710, 63 Pac. 572, 54 L. R. A. 649, referred to in appellant’s briefs, was a case where the plaintiff brought an action against the Oregon Railroad & Navigation Company and Samuel Root, to recover damages for personal injuries alleged to have been caused solely by the negligence of Rooi while acting as conductor on one of the defendant railroad company’s freight trains. It was alleged in the complaint that Root, by virtue of his employment, had charge and control of the train on which he was acting as conductor, and that he negligently, carelessly, and recklessly permitted the train to run past a siding, well knowing that, by so doing, the train was likely to collide with the train on which the plaintiff was employed as fireman, and that, by reason of this negligence on the part of Root, the injuries complained of by plaintiff were suffered. The sole negligence relied upon by plaintiff was that of the defendant Root, and the railroad company was sought to be held liable on the doctrine of respondeat superior. The jury returned a verdict against the railroad company only, and the trial court ruled that the
In the case now under consideration, the question of whether the contributory negligence of Pierce is to be attributed and imputed to Allen depends entirely upon the relationship in which they stood to each other at the time of the accident. The rule adopted by this court, and the one sustained by the weight of authority, is to the effect that, where one is riding in a vehicle with another as his guest or companion and is injured by the negligence of a third person, the contributory negligence of the driver is not imputable to the injured person unless the latter, at the time of the injury, was in a position to exercise authority or control over the driver, or
The trial court, by instructions of which no complaint is made, submitted to the jury the question of the relationship existing between Pierce and Allen at the time of the accident, and whether the negligence of the former was, under the evidence in the case, to be attributed to the latter. The verdict of the jury in favor of the respondent must, therefore, be considered as a finding by the jury that he did not possess any authority or control over Pierce with reference to the matter wherein the jury evidently found that he was guilty of contributory negligence. Consequently the two verdicts ren
This seems to dispose of the only question presented for our consideration. The judgment is affirmed.
Ellis, C. J., Morris, Main, and Chadwick, JJ., concur.