City of Leavenworth v. Hatch, 57 Kan. 57

City of Leavenworth v. Hatch

57 Kan. 57 | Kan. | 1896

The opinion of the court was delivered by

Allen, J. :

It is insisted on behalf of the city that there was not sufficient evidence to support the verdict in this case. The witnesses do not all agree as to the condition in which the street was left on the evening the plaintiff was injured, but there is testimony showing that there were piles of stone extending diagonally across the street, and that most of the travel was off the macadamized part of the street on the dirt. The strongest evidence in favor of the plaintiff is to the effect that it was impracticable to drive on the macadam, and that it was necessary to go to the side. It was clearly shown that the night was dark, and that no lights were placed at this point at the time, nor were there any barriers to warn a person approaching of danger. We think there is evidence tending to show that the work was being carried on *60in a negligent manner, and that the street was in a dangerous condition. The question of fact, so far as there is dispute in the evidence, has been resolved by the jury in the plaintiff’s favor.

The principal question of law presented is whether the negligence of the driver, if he was negligent, should be imputed to the plaintiff and held to bar her recovery. The court instructed the j ury that if the driver had sole charge of the vehicle, and she had no control over him, his negligence could not be imputed to her and would not bar her recovery. Counsel for plaintiff in error cite in support of their position the case of Prideaux v. City of Mineral Point, 43 Wis. 513; Slater v. Burlington, C. R. & N. Rly. Co., 71 Iowa, 209; Morris v. Chicago, M. & St. P. R. Co., 26 Fed. Rep. 22. These cases, it must be conceded, give some countenance to the contention of the plaintiff in error, but, so far as they do, we think they are in conflict with the current of decisions on the question. (Tompkins v. Clay Street Rld. Co., 66 Cal. 163; Danville, L. & N. T. R. Co. v. Stewart, 2 Metc. [Ky.] 119; W. St.L.&P. Rly. Co. v. Shacklet, Admx., 105 Ill. 364; Transfer Co. v. Kelly, 36 Ohio St. 86; Bennett v. New Jersey Rld. & T. Co., 7 Vroom, 225; Cuddy v. Horn, 46 Mich. 596.) The foregoing were cases in which the plaintiff was a passenger in a public conveyance, and it was held that the servant in charge of the conveyance in which he was riding was not his servant in such sense that his-negligence ought to be imputed to the plaintiff. See, also, C. R. I. & P. Rly. Co. v. Groves, 56 Kan. 601; C. K. & W. Rld. Co. v. Ransom, 56 id. 559. In the case of Dyer v. Erie Rly. Co., 71 N. Y. 228, it was held:

‘‘ Where one travels in a vehicle over which he has no control, but at the invitation of the owner and driver, no relationship of principal and agent arises *61between them ; and, although he so travels voluntarily and gratuitously, he is not responsible for the negligence of the driver where he himself is not chargeable with negligence, and where there is no claim that the driver was not competent to control and manage the team.”

In the case of Little v. Hackett, 116 U. S. 366, the authorities were very fully reviewed in an opinion by Mr. Justice Field, and it was held :

“A person who hires a public hack and gives the driver directions as to the place to which he wishes to be conveyed, but exercises no other control over the conduct of the driver, is not responsible for his acts or negligence, or prevented from recovering against a railroad company for injuries suffered from a collision of its train with the hack, caused by the negligence of both the managers of the train and of the driver.”

We think the law well settled that where the person injured has no right to control the movements of the driver, and does not, in fact, exercise any control, the negligence of the driver cannot be imputed to him.

Complaint is made of the refusal of the court to give other instructions, but we think so much of those asked as was good and applicable to the case was given in the general charge.

Complaint is also made of the statement to the jury that the plaintiff might recover any amount not exceeding $5,000, because it is said that only $4,500 was asked in the petition for the injuiy, and that there was no proof whatever concerning the value of the medical services and expense for nurses. If the verdict and judgment exceeded $4,500, this might present a question requiring consideration, but as the verdict is for only $3,200, we fail to see any substance in the complaint, there being no complaint that the *62court gaye any other erroneous charge as to the measure of damages.

The judgment is affirmed.

All the Justices concurring.