228 F. 401 | 6th Cir. | 1916
The defendant in error (who was plaintiff below), while crossing the roadway adjoining the public square in the city of Cleveland, was struck by defendant’s automobile, driven by his son William, sustaining severe injuries, on account of which this suit was brought. At the close of the testimony defendant asked direction of verdict in his favor, which was denied, and the case submitted to the jury, which gave verdict for plaintiff, on which judgment was entered. The grounds relied upon for reversal are: (1) That defendant is not liable for the alleged negligence of the sou in operating the automobile, for lack of relation of master and servant; (2) that plaintiff is conclusively shown guilty of contributory negli - gence; and (3) error in the charge to the jury.
“The car was more or less in constant nse wlien in proper condition.”
No chauffeur was kept, and this car was the only one defendant or any member of his family had.- The father drove comparatively seldom; usually one of the sons drove, and it is fairly inferable that William was usually the one to drive when in the car, by reason of his greater experience as driver. The mother and daughter never drove, but were frequently taken out in the car; the driving being done by one of the sons, and inferably more often by William. We state the case, as we must, most favorably to plaintiff. On the day of the accident, which was Sunday, the father and mother were aiway from the city on a few days’ absence; the four sons and the daughter remaining at home. An automobile trip to a resort some 60 miles distant being planned, the daughter put up and took a lunch for the refreshment of the party; the car carrying the four sons and' the daughter, as well as another man, a friend of the family, who, as the daughter testified, was “visiting us.” The maid was the only member of the household left at home.
Assuming, for the purposes of this opinion, that defendant would not be liable if the accident occurred during a merely permissive use of the machine — that is to' say, while the son was driving the car for his own pleasure, and notwithstanding it was being kept in part for the recreation of the family, and an implied consent that the son use it for his own pleasure (Doran v. Thomsen, 76 N. J. Law, 754, 71 Atl. 296, 19 L. R. A. [N. S.] 335, 131 Am. St. Rep. 677; Parker v. Wilson, 179 Ala. 361, 368, 60 South. 150, 43 L. R. A. [N. S.] 87)
A significant feature of this case, which dislinguishes it from some of the cases relied on by defendant, is the fact that all the members of defendant’s family (so far as at home) were participating in the use of the car; there being no other occupant except a family guest. The importance of this consideration is illustrated by the cases of Doran v. Thomsen, supra, and Missell v. Hayes, supra. In the former case the father was held not liable for the negligence of his daughter in driving the car for her own pleasure, notwithstanding its purchase by the father for the use of his family, and his implied consent that the daughter use it for the purpose stated. In the latter case, where the accident occurred while one of the sons was driving the car, which contained also defendant’s wife and daughter, together with a guest of the son and a guest of the daughter, the facts were held sufficient to support a finding that the son was acting as the servant of his
There was testimony on defendant’s part that at a speed of 25 miles an hour the machine could not be stopped within less than 50 to 75
Another criticism of the charge is addressed to an instruction that a violation of the city ordinance regulating the running of automobiles would be “some evidence of negligence to be considered” by the jury, with all the evidence in the case. But this instruction also passed unchallenged by exception.
Rule 10 of this court (150 Fed. xxvii, 79 C. C. A. xxvii) requires that exceptions to the charge “must state distinctly the several matters of law to which exception is taken.” The well-known object of this requirement is to pointedly challenge the trial court’s attention to the actual complaint made, and thus give opportunity for correction or modification. We think the natural interpretation of this exception would be that it was intended to call attention to a supposed lack of instruction that such negligence, in order to be actionable, must have been the proximate cause of the accident, and that it would not naturally occur to the trial court that it was aimed at a distinction between negligence per se and evidence of negligence. The jury was later told that the burden was on plaintiff to show that the driver’s negligence “proximately or directly produced” plaintiff’s injuries. The court was not bound to separately apply this requirement to each specific ground of negligence relied on.
We think, moreover, that as a practical proposition defendant was not in any event prejudiced by the instruction in question, for we think the driver’s own testimony would naturally lead to a finding that he was negligent, in that after seeing plaintiff and her daughter “out in the street,” and at a distance of 25 to 50 feet, and seeing one of them stop, he took it for granted that both would stop, and so did not look again until he heard a warning call from his brother, when the automobile was within 5 to 8 feet of the plaintiff, and it was too late to avoid collision.
Finding no error to defendant’s prejudice, the judgment of the District Court is affirmed, with costs.
See Schumer v. Register, 12 Ga. App. 748, 746, 78 S. E. 731.
See, to the contrary, Daily v. Maxwell, 152 Mo. App. 415, 133 S. W. 851; Davis v. Littlefield, 97 S. C. 171, 81 S. E. 487.
One of defendant’s sons, who sat on the front seat with the driver, testified tliat the automobile was going at a rate of only 6 miles an hour, adding: “We hadn’t been going faster than that at any time through the congested district. I knew the law allowed us to run at 8 miles an hour, and knew if we were going at more than 8 miles, an hour, we were breaking the law.” The driver (William) testified that he was running only 7 or 8 miles an hour.
“Defendant excepts to that portion of the court’s charge in which he said that a violation of the state law is negligence per se, without calling attention, to the fact that such negligence contributed to the accident or was the proximate cause thereof.”