delivered the opinion of the court.
Plaintiff in error brought this action against defendants in error for damages occasioned by an automobile collision. The parties are hereinafter referred to аs in the trial court, or by name.
At the close of plaintiff’s evidence the court sustained Mrs. Phillips’ motion for a nonsuit as to her. At the close of all the evidence the court overruled plaintiff’s motion to amend his complaint to conform to the proof by alleging a joint enterprise, and sustained the motions of Close and Phillips for directed verdicts as to them. Motion for new trial was overruled and to review the judgment thereupon entered against plaintiff he brings error.
Defendant Dennis Phillips, 19 years old, and Close, 21, аre cousins, and Mrs. Phillips is the mother of the former. Her husband, the father of Dennis, died December 29, 1925. He left a will naming his wife as sole executrix. She continued to occupy the family residence, act as head of the family (consisting of three children, including Dennis, all residing with her), and was in possession of *152 her late husband’s personal effects, including the family сar. This car had usually been driven by Dennis with the consent and approval of his father and mother. On the evening of January 2, 1926, with the consent and approval of his mother, Dennis wеnt in this car to visit his cousin at the hotel where he stayed and from there the boys attended a dance near Denver. Dennis drove the car out, but on the return trip Close, with the сonsent and approval of Dennis, was at the wheel. About 2 a. m. they were inside the city, driving north on Broadway, and approaching a point where that street is interseсted by two others. At the same time Boyd in his car was on the same street driving south, and approaching the same point with the intention of turning left at the intersection. Each cаr, as was proper, was on the left of the other and on the right hand side of Broadway. When Boyd made the turn he came directly in front of defendant’s car and the collisiоn here in question, with the personal injury and property damage complained of, resulted.
The Denver ordinances forbid intoxicated persons to drive automobilеs, direct that the driver on the left shall yield the right of way, and fix the maximum speed south of this intersection at 20 miles per hour and north of it at 15.
When Boyd turned left the Phillips car was apрroaching him from the right, and, if otherwise within the law, had first claim to the road. That they were on the same street is immaterial. It is the position of the cars as their paths cross, nоt the direction of a highway, which requires the establishment of a rule and determines its applicability. The trial court so held. Counsel for Boyd dispute this point but we think it too cleаr to admit of argument. If cars approach each other on a straight track, each on the right hand side of the road, and neither turn, no question of precedence can arise. But he who turns, thus transferring the other from his left to his right, must yield. Otherwise no rule governs and “the
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race is to the swift and the battle to the strong. ’ ’ Since Boyd did not yield the burden is on him to excuse his failure. This he maintains he did, by pleading and proof, and this is his case so made: He was well within the maximum speed limit, was exercising reasonable care, and gave the proper signal. . As he started to turn he saw the approaching lights of the Phillips car 100 yards away but had no reason to, and did not, believe that it was exceeding the speed limit. He was handicapped by the night, the lights, the location of the cars, and falling snow. Defendant’s, car was in fact approaching at 45 miles an hour, its driver was drunk and rеckless, he did not signal, slow down, turn, or use his brakes. He covered the intervening 300 feet while plaintiff was going 90 feet. On this case plaintiff claims the right to go to the jury. That it was contradicted is, of course, immaterial. Defendants answer that they had the right of way; that no appearance could justify plaintiff’s conclusion that the crossing was safe; that thе mere fact that the cars came together proves the likelihood of a collision; that Boyd’s failure to yield was contributory negligence which, as a matter of law, was the proximate 'cause of the disaster. In support of this contention they cite:
Livingston v. Barney,
Defendants say Mrs. Philips can not be held because she was neither owner nor driver of the offending car, and that the driver was not her agent because the trip was neither on her business nor with her knowledge and cоnsent; that Dennis can not be held because he did not own the car, was not driving it, and being a minor and unable to contract can be held neither as master nor principаl; that Olqse can not be held because of their asserted rule which charges plaintiff with contributory negligence as a matter of law.
Our conclusion on the question of contributory negligence disposes of the.contention of Close.
The “family car” doctrine has, for the past ten years, been the law of this jurisdiction.
Hutchins v. Haffner,
*155 It depends upon control and use. Mrs. Phillips had control of this car and it was kept for family use, which meant principally for the pleаsure and convenience of Dennis. In the present instance- that convenience and pleasure was to attend a dance, whether on his own account or to accommodate his cousin is immaterial. That Mrs. Phillips did not know of or expressly sanction the particular trip is also immaterial. It was clearly within the purview of the gеneral purpose for which the car was kept and used and her liability is thereby fixed.
If there is such a thing as a joint enterprise in relation to the use of an automobile wе think this is it. These two boys, in conformity to the desire of each, took a. particular car for a particular trip and shared between them the duty of driver. Plaintiff’s motion to amend should have been sustained.
Howard v. Zimmerman,
Much of this evidence was disputed. For aught we can say it may be literally true or wholly false.. Wе have here held it in the light most favorable to plaintiff for so only can we determine his right to demand a' verdict thereon. So considered that right is clearly apparent as to each defendant.
The judgment is reversed and the cause remanded with directions to set aside the nonsuit, grant plaintiff’s motion to amend and retry the cause in conformity herewith.
Mr. Justice Whiteord, sitting for Mr. Justice Butler, Mr. Justice Adams and Mr. Justice Campbell concur.