68 Neb. 539 | Neb. | 1903
The plaintiff, Anna Hajsek, and her husband, Vaclav, were farmers, living a short distance northwest of the village of Ord, in Valley county. On the 22d day of December, 1900, they drove to town with their family team, a span of horses, attached to a common lumber wagon, upon the box of which was a spring seat, upon which they sat. After spending the afternoon in the transaction of business with the village storekeepers, they started toward home at about six and a half o’clock in the evening. The night was cold, dark and stormy, the wind blowing fiercely from the northwest, and carrying considerable clouds of dust. The husband sat on the eastward end of the seat and drove the team. At a short dis-distance north of the village the road which these parties Avere traveling Avas crossed at nearly right angles, and at a distance of about three-quarters of a mile northwest of the village depot, by the track of the defendant railroad company. Westward from Ord the company operated two regular trains a day, the last of which, if running according to “schedule time,” should have passed this intersection at 5 o’clock P. M. on the day in question, but without the knoAvledge of the plaintiff or her husband, it was an hour and forty minutes late. Just before reaching the crossing, going northward, there was a considerable depression in the common highway, and, beginning about two hundred feet eastward from the crossing, there was a cut of considerable length and from five to eight feet deep in the railroad grade. In daylight a person standing on the highway sixty feet south of the crossing could have seen an approaching train four hundred and fifty feet away, and at from thirty to forty feet from the crossing a train under like circumstances might have been seen nearly the whole distance to the station. Husband and wife both testify that when they were from thirty to forty steps — that is, from ninety to a hundred and twenty feet — south from the crossing they both looked eastward
In seeking an answer to this question it is unnecessary to inquire what would have been the case if the action had been by the husband to recover for injuries to himself. Some argument is advanced in support of the proposition that inasmuch as the plaintiff mentioned the team and wagon as “ours,” and because the expedition into the the village Avas for the purpose of buying family supplies, the transaction should be regarded as a “joint enterprise,” in wdiich the negligence of each partner should be imputed to the other, within the rule of Omaha & R. V. R. Co. v. Talbot, 48 Neb. 627. We are not impressed by this argument. Doubtless the life journey of the parties since their marriage may, in a sense, be regarded as a joint enterprise, but this fact would not be held, to charge the wife with the consequences of the husband’s negligence in most transactions. Why should it be so regarded in this instance? In Huff v. Ames, 16 Neb. 139, the doctrine of imputed negligence Avas distinctly repudiated by this court. The fact that the person injured in that instance was an infant we do not conceive to affect the rule now under consideration. We can see no reason why, if the negligence of the husband may be imputed to his wife, that of a father may not also be imputed to his child. The fact that the child, being under years of discretion, is incapable of negligence, wdiile the Avife is so capable, can make no difference with the application of
It is recommended that the judgment of the district court be reversed, and a neAV trial granted.
Reversed and remanded.
Note — On rehearing the judgment of this court was reversed and the judgment of the lower court was affirmed. Reported in 5 Neb. (Unof.) 67, for reasons stated in reporter’s note to that volume, page v.