150 A. 477 | Pa. | 1930
Plaintiff's husband, James V. Johnson, and defendant's decedent, Ernest Scott Hetrick, were killed at the same time, under circumstances related in this opinion. Plaintiff recovered a verdict on the ground that Johnson's death was due to the negligence of Hetrick. Defendant has appealed.
Johnson, while a passenger in an automobile belonging to and driven by Hetrick, was killed, on the way home from work, in a collision with a railroad train. Johnson and Hetrick were employed in the same mine, the former as a mine foreman and the latter as a blacksmith, and they had for some two months been in the habit of riding to and from work in Hetrick's automobile. So far as the evidence indicates, Johnson made no contribution toward the upkeep of the car, never drove it, and exercised no control over Hetrick in the management of the vehicle. No express invitation, extended to Johnson by Hetrick, to become his guest, was shown, yet the only inference possible from all the relevant proofs in the case is that, when in the car, Johnson occupied that relation toward Hetrick. While, on the one hand, there was direct evidence that Hetrick, without obeying the "stop, look and listen" rule, attempted to cross the railroad in the face of a plainly visible onrushing train, on the other hand, there was no evidence whatever as to what Johnson did or said, or attempted to do or say, *229 immediately before or at the time of the accident. The court below left the relevant issues to the jury, under instructions which are not here complained of, and the verdict favored plaintiff. The only assignment of error goes to the refusal of judgment n. o. v.
Defendant contends that, since both men in the automobile were killed, she is entitled to the presumption that her decedent performed his full duty, that he was not negligent, and for this reason there can be no recovery against his estate. True, in Allen v. Kingston Coal Co.,
Defendant suggests that, because the evidence shows Johnson, plaintiff's decedent, to have been a foreman, and Hetrick, her decedent, a blacksmith, in the same mine, it must be assumed, for purposes of this case, that, at the time of the accident, the former was in a position *230
to exercise control over the latter, and, therefore, Johnson should be viewed as the master and Hetrick as the servant, and the case decided accordingly; but we are not impressed by this suggestion. First, there is a question whether the alleged relationship would have the force in law which appellant would have us give to it. See Brush, etc., Co. v. Lefevre (Tex.),
Appellant's next contention, and the one most strenuously insisted upon, is that Johnson and Hetrick were engaged, at the time of the accident, in a joint enterprise and that this is enough to prevent recovery. Nothing in the record indicates that this contention was made at the trial; we find no requests for charge raising the issue and it was not expressly submitted to the jury. More than this, if the case should be viewed as one where these men were engaged in such an enterprise, yet that would not bar recovery in a suit like the present, by one participant against another (discussion and authorities, infra); though it might put a higher degree of care on plaintiff's decedent than if he were a mere guest (Dunlap v. P. R. T. Co.,
Both in Pennsylvania and elsewhere, there appears confusion of thought in the cases concerning the precise elements which should be considered in determining whether one suing for injuries occupied the position of *231
an actor in a joint enterprise; the better view, however, is that, to fix this status on a passenger in an automobile which meets with an accident, not only must there exist, between the injured person and the participant alleged as responsible for the accident, a common purpose to be served in the use of the car, but there must also be evidence which would warrant a finding that such injured person had some right to a "voice in the control, management or direction of the vehicle": Hilton v. Blose,
Counsel have referred us to no Pennsylvania authority ruling the point now under discussion, and our own research has disclosed none, but in Zimmer v. Casey,
Though we do not find any Pennsylvania decision which holds that the doctrine of joint enterprise has no place in an action for negligence by an injured passenger against an alleged negligent driver of the car used at the time of the accident, yet the point has been decided in other jurisdictions. In O'Brien v. Woldson,
The doctrine of joint enterprise has no place in the present case; all issues involved were submitted to the jury, and we have not been shown any reason for disturbing the judgment entered by the court below.
The judgment is affirmed. *234