120 A. 74 | N.H. | 1923
The defendant claims that the plaintiff and her husband were engaged in a joint enterprise in operating his automobile. The situation is the same as that presented in Collins v. Hustis,
The proposition of law relied upon by the defendant — that where two are engaged in a joint enterprise each is chargeable with the negligence of the other — has no application outside the joint undertaking. Beaucage v. Mercer,
The question presented is not whether the plaintiff herself was negligent in failing to use due care, as a passenger, to watch for danger, and to give timely warning or reasonable advice to her husband. It is solely whether his independent negligence is to be imputed to her because of their relation. "It has never been held in this state that the negligence of one person is imputable to another, unless the former was the servant or agent of the latter." Warren v. Railway,
It is urged that as the children of the plaintiff and her husband were riding with them, as one purpose in taking the trip was to give them a ride and as this was a common purpose of the husband and the wife, therefore the operation of the car was a joint enterprise. *550 But there is the same defect in the argument here as in the case where only the two parties are in the vehicle. Going upon the ride is the joint enterprise, while the operation of the car is the independent business of the person who has it in charge. In the cases cited by the defendant, the plaintiff had a right to a part in the control of the movements of the vehicle. In none of them is there any denial of the now quite uniformly accepted rule that such right of control is the test of responsibility for negligent operation.
The case chiefly relied upon by the defendant is Wentworth v. Waterbury,
The only evidence of a joint undertaking in this case is contained in three questions propounded to the plaintiff upon cross-examination, and her answers thereto. These were as follows:
"Q. Your principal object in taking that trip was to buy some groceries? A. Yes.
Q. And also to give the children an airing? A. Yes.
Q. And that was the common purpose of yourself and husband, wasn't it? A. Yes."
There is in this evidence not the slightest suggestion that the plaintiff thought she had any joint part in directing the movements of the car. Nor does it in any way point to the conclusion that she had such right, either as matter of law or in fact. It was the *551 ordinary situation of the wife and children riding with the husband and father. Had the defendant's counsel desired to establish the existence of an unusual relation of the parties toward the operation of the car, it was incumbent upon them to inquire further. It cannot be inferred upon the present state of the proof. As the evidence stands, the common purpose, or joint undertaking, did not extend to the management of the car. As there was no evidence upon which to base a finding that would charge the plaintiff with her husband's negligence, the requested instruction upon the subject was properly refused.
The defendant also excepted to the refusal to charge that the plaintiff could not recover for mental suffering endured by her because of apprehension that her child, born four months after the accident, would be deformed or marked because of what she. had suffered, unless such result could be so caused. This request to charge was based upon the testimony of a physician (called by the defendant), to the effect that it is a fact well known in medical science that such a result cannot follow from such a cause. The error in the request, and in the argument in support of it, lies in the failure to appreciate precisely what it is that may be recovered for in a case like this. The mother cannot recover for the deformity of the child. Proof that the child was or was not deformed when born would not affect the amount of the mother's recoverable damage. Prescott v. Robinson,
If the test were the reasonableness of her mental attitude (a question upon which no opinion is expressed), her case upon this point is made out by the testimony of the same physician, who stated that while her theory of birthmarks is scientifically unsound, yet it is so uniformly accepted by the laity that a belief in it would be a reasonable one. Upon this matter the jury were instructed that the plaintiff could not "recover for mental anguish which is unnatural and the result of imagination or superstition." This afforded the defendant adequate protection.
The further argument that the defendant could not be held to foresee such a result, because of the scientific fact, seems logically *552
unsound. The popular view being the one generally accepted, the reasonable conclusion for the defendant would be that it would probably be held by the plaintiff. And, in the absence of evidence to the contrary, it is the fair inference that the defendant himself was ignorant of the scientific fact, and not only would understand that the plaintiff would think upon the subject along popular lines, but would also understand that such view was the correct one. If reasonably to be apprehended consequences were the general test, it would afford no answer here. But however that may be, the rule in this jurisdiction is that "The question is not whether the damage was foreseen or foreseeable, but whether it in fact resulted as a direct consequence of the defendants' act." Tuttle v. Dodge, ante, 304, 311, and cases cited. Upon the question whether the defendant has been guilty of negligence, the rule of reasonable anticipation applies. Minot v. Railroad,
Exceptions overruled.
Young, J., was absent: the others concurred.