Johnson v. SchulerJohnson v. Schuler
- Reporters:
- , ,
- Before:
- Dibeud
Aсtion to recover for personal injuries sustained by the plaintiff, who was struсk by an automobile owned by the defendant Charles *138Schuler and driven by the defеndant Roderick Schuler, his son. There was a verdict against both defendants. Eаch separately moved for a new trial, which was denied, and each appeals.
The plaintiff lived on Ilion avenue in Minneapolis, which runs nоrtherly and southerly and crosses Lake Crystal avenue, which runs easterly and westerly. About 7 o’clock on the morning of September 24, 1919, he came down Ilion avenue from the north to take tb” easterly bound car for Minneapоlis. The car was approaching from the west. Its stopping placе was easterly of the first avenue west parallel with Ilion. He started diagоnally across the street and westerly to reach the stopping plаce, and was struck by the auto coming from the east. He saw it some little distаnce before it reached him. There was evidence that it was going at a negligent speed.
It was not necessarily negligent for the plaintiff to go across the street at a place other than a regular intersеction. Bolstad v. Armour & Co. 124 Minn. 155, 144 N. W. 462; Stallman v. Shea, 99 Minn. 422, 109 N. W. 824. He was required to exercise ordinary care in his mоvements. So was the driver of the auto. Neither had an absolute right of way. The plaintiff would not likely have been injured unless he or Roderick, one or both, were at fault. The negligence of each was a question of fact; and the jury, under proper instructions, decided both questions favorably to thе plaintiff. Its finding is final.
The more difficult question is whether the defendant Charles Schuler was properly found responsible for the negligence of his son Roderiсk; and this involves the question whether the so-called family auto doctrine which obtains in this state is applicable.
Charles Schuler operated a hardware and machinery store and sold autos at Robbinsdale. The business was owned by Schuler and a partner until about two weeks before the aсcident, when he became its sole owner. Roderick worked in the store and about the business doing whatever he might. The car which he was driving at the time of the injury was a Dort roadster. Schuler owned a Mitchell car which was the fаmily car. The Dort had been used as a show car in 1918, and in 1919 was used as a demonstration car *139and generally in the business for whatever purpose it was suited. There is evidence that Schuler told his son that the Dort car was to be used only in the business and not as a pleasure car. One reason seems to have been that it was owned by the partnership and that it was unfair to the оther partner, who had a pleasure car of his own, to use the Dort in anything but partnership business. This partnership terminated on September 11, and from then on the Dort car was the property of Schuler. The particular rеason stated was not effective after that time. There is evidencе that Roderick, before and after the accident, used the Dort car for riding about with his friends for purposes of pleasure as well as in the cоnduct of the business. There is evidence that Schuler’s daughter drove the cаr in connection with the business, and to some extent for purposes asidе from business. Roderick had access to the garage and was able to take the machine when he wanted it. On the day of the injury he started out eаrly in the morning, say about 6 o’clock, to go on a pleasure trip with a young man friend. Both father and son say it was without the father’s permission. The casе on its facts is a close one; but within Kayser v. Van Nest, 125 Minn. 277, 116 N. W. 1091, 51 L. R. A. (N. S.) 970; Jensen v. Fischer, 131 Minn. 336, 159 N. W. 827; and Johnson v. Evans, 141 Minn. 356, 170 N. W. 220, 2 A. L. R. 871, and the cases therе cited, it was for the jury and not the court to say whether the Dort car was kept so much for a family use and its use for the pleasure of Roderick so much sanctioned that the father was responsible for his son’s negligence.
Order affirmed.