273 N.W. 209 | Neb. | 1937
Bessie McWilliams instituted this action against William Griffin and Sidney R. Lang, to recover for personal injuries received in an automobile accident occurring on May 4, 1935, in the city of Lincoln, at the bridge across Oak creek on North Tenth street. Defendants joined issue, and trial was had to a jury resulting in a judgment for plaintiff and against the defendants. From the order of the trial court overruling his motion for a new trial, Sidney R. Lang alone appeals.
The case on this appeal turns on the question whether the automobile involved in the accident in suit, let by Lang to Griffin, was defective, and whether the injuries for which plaintiff sues were received by her by reason of such defects, which the lessor might have discovered by reasonable inspection before letting. The defendant Lang-’s defense is a general denial, with which is coupled an allegation “that the injuries and damages sustained by the plaintiff, if any, were due to and the result of the carelessness, negligence and unlawful acts of the defendant William Griffin and the plaintiff herein, all of which were the proximate cause and contributed to the alleged damages to the plaintiff.”
Defendant Lang is engaged in the business of letting automobiles for hire. Under his plan of doing business, he does not furnish a chauffeur. The party obtaining the car provides his own driver. It appears that on the evening of May 4, 1935, at about 8:10 p. m., defendant Griffin appeared at Lang’s place of business and rented car No. 10, a Ford coach. On the delivery of this car to Griffin, he signed a printed certificate, of which the following is a copy:
“Arcade Rent-A-Ford Co. Phone B1647. Lincoln, Nebr. Date, May 4, ’35. This certifies that I have this day rented from the above company, Car No. (indicated below) in good condition. I am a competent driver and operator of this make of car, and hereby agree to be responsible for said car and to return same to said company
The automobile then received by Griffin was a 1933-Y-8 Ford coach, and, as indicated above, was identified as “Car No. 10.” It had been purchased by Lang in the middle of 1933, and had been used continuously since that time in his business. The record discloses that immediately prior to this transaction in suit, on April 30, 1935, Albert York had rented and driven car No. 10 five miles; on May 1, following, witness L. S. Long had rented and driven it 18 miles; on May 2, 1935, S. Seguin had rented and driven it 122 miles; on May 3, witness M. L. Lawson had rented and driven it 11 miles; and on the same day Vern Thomas had rented car No. 10 and had driven it 23 miles. So far as disclosed by the record, none of these parties complained to defendant Lang of the working of this car. The affirmative evidence of Lawson and Long is that while they were operating this car it functioned properly. Indeed, Lawson’s testimony as to an occurrence on May 3, is: “Q. Do you remember how far you drove it? A. Well, I was almost to Malcolm to a farm out here and turned around and came back in. Q. How did the car drive? A. It drove all right for me. Q. Were the brakes working? A. They absolutely was, because I remember when I came in from Abe’s Tavern, when I came around the curve there I was going 55 to 60, and a car came out from the road there and I had to stop to keep from hitting him. Q. Did the car shimmy? A. It did not. Q. The brakes worked all right, did they? A. They sure did.”
Further, defendant Lang testified that on May 4, before it was turned over to defendant Griffin, he personally drove car No. 10 to the gas pump and filled it; that the brakes were then in good condition, and that there was nothing wrong with the accelerator, the spindles, or the steering device.
Car No. 10 was then delivered to defendant Griffin about 8:10 p. m. The record further discloses that Mr. F. H. Benton, who was Griffin’s companion during the events which occurred on the evening of May 4, 1935, met Griffin at a beer tavern some time after 8:10 p. m., where Griffin was then eating. This beer tavern was located at the corner of Tenth and N streets in the city of Lincoln, and the rented car was then parked outside. Griffin, after a conference with Benton, called up the plaintiff, who testifies: “He * * * said there was another couple with him or going to be with him, a Mr. Benton and his girl friend, and he wanted to know if I would go along with them for the evening; and I said, no, I didn’t think I would because I had worked late and was going to take an aspirin and lie down, but I said, ‘You can call later and I will see how I feel then,’ but instead of calling he (with Benton) came out
However, four disinterested eyewitnesses of the accident, who were not members of this pleasure party, agree on their testimony that the car was traveling at the rate of 60 miles an hour or more as it approached the bridge; that the driver continued to feed gas until within 15 feet of the bridge, and was then apparently unable to make the turn, and crashed into the northeast corner of the bridge. All three persons of this pleasure party in the car at the time of impact occupied the front seat, with rear seat entirely empty when the accident occurred.
Plaintiff also says in her testimony, as to speed: “Q. Didn’t you tell him (Griffin) if he didn’t stop you would get out? A. He drove carefully until he got about half way between Abe’s and that bridge. Q. Then you think the alcohol took hold ? A. Then he did speed up, not much. Q. Didn’t you say you wanted out of the car if he didn’t stop driving so fast? A. No; I told him to be careful because we were coming to a turn and it was a short turn. Q. Didn’t you say, Tf you don’t quit driving so fast I will get out of the car?’ A. You are misrepresenting it. Q. Wasn’t he driving on the wrong side of the road? A. No; he wasn’t. Q. And he wasn’t driving in a reckless, careless, negligent manner? A. No; he wasn’t.” ■
Defendant Griffin testified as to the cause of the shimmy: “I would say it was caused from loose spindles,,or the car
It also appears in the record, without objection of parties, that Griffin, on the night of the accident and shortly after it happened, was arrested by the city police for speeding and reckless driving. The police officer making the investigation of the accident, immediately after its occurrence, testified that the radiator of the car struck the northeast corner of the bridge almost “head-on;” and that the steel railing of the bridge “was driven through the radiator and up past the motor and through the dash so that there was about two or three feet of railing extended on through the dash into the front seat of the car.”
Witness Fosbury, shop foreman for O’Shea-Rogers Motor Company, with an experience as an expert mechanic dating back to 1913, who repaired the wrecked car, examined car No. 10 the next day, and personally superintended the work of repairing it, and whose competency as an expert is not questioned, testified, in part, as to the
Plaintiff also introduced in evidence the traffic ordinance of the city of Lincoln, in force at the date of the accident. Section 517 thereof, reads as follows:
“Speed Regulated. Motor vehicles shall be driven at a rate of speed that is reasonable and proper having regard for the traffic and roadway and the condition of the street, and shall at all times be under the control of the driver. The maximum rates of speed shall be as follows: In the congested district, fifteen ' (15) miles per hour; on arterial streets outside of the congested district, twenty-five (25) miles per hour; on all other streets, twenty (20) miles per hour. It shall be unlawful for any person to operate a motor vehicle at a greater rate of speed than
We have thus quoted at length from the record testimony which, in view of the undisputed physical facts, establishes as a matter of law the character of the transaction in suit to be one wholly insufficient to sustain the judgment appealed from.
The accident occurred within the corporate limits of the city of Lincoln, on the public streets thereof. The entire transaction was within the purview of the public ordinance of that city in evidence, and its terms were applicable thereto. The transaction presented to us was a bailment, a letting of the automobile for hire by Lang to Griffin. It involved a contract of hire, partly in writing, partly oral. It contained, or at least justified, the implied inference that Griffin might use the automobile hired for the purpose of carrying other persons as passengers, either as guests, employees, joint adventurers, or otherwise. It is also to be conceded that this contract of bailment, impliedly at least, warranted that the thing bailed “is of a character and in a condition to be used as contemplated by the contract.” 7 Am. & Eng. Ency. of Law (2d ed.) p. 306. See, also, Williamson v. Phillipoff, 66 Fla. 549, 64 So. 269; Collette v. Page, 44 R. I. 26, 114 Atl. 136.
The contract must also be deemed to render applicable the following rule: “There is on the part of the hirer an implied obligation not only to use the thing hired with due care and moderation, but also not to apply it to any other use than that for which it was hired; and if the hirer of an animal or other chattel, without the consent of the letter, uses it for a different purpose or in a different manner from that contemplated by the contract of hiring, or in any other way transcends the contract, and the thing hired is lost, destroyed, or injured while being so used, the hirer is liable absolutely, although without fault.” 7 Am. & Eng. Ency. of Law (2d ed.) p. 312.
It thus appears in the present case that the terms and
A contract is not merely what the parties expressly stipulate. It is that also which the existing laws of the county where the contract is made annex to it at the time when it was formed. Ogden v. Saunders, 12 Wheat. (U. S.) 213; Bronson v. Kinzie, 1 How. (U. S.) *311. See, also, Farmers & Merchants Bank v. Federal Reserve Bank, 262 U. S. 649, 43 Sup. Ct. Rep. 651; Fidelity State Bank v. North Fork Highway District, 35 Idaho, 797, 209 Pae. 449; State v. Klein, 63 N. Dak. 514, 249 N. W. 118; Gregg School Township v. Hinshaw, 76 Ind. App. 503, 132 N. E. 586; Maxwell v. Eddy Paper Co., 232 Mich. 356, 205 N. W. 111; Anderson v. Miller Scrap Iron Co., 169 Wis. 106, 170 N. W. 275.
Every contract is made with reference to, and subject to, existing law, and every law affecting the contract is read into and becomes a part of the contract. This is true between individuals dealing between themselves by contract, and it is also true between individuals and the government. Cobbs v. Home Ins. Co. of New York, 18 Ala. App. 206, 91 So. 627; People v. Levitt, 145 Misc. 621, 260 N. Y. Supp. 458; Walker v. Whitehead, 16 Wall. (U. S.) 314; City of Henderson v. Henderson Traction Co., 200 Ky. 183, 254 S. W. 332; 13 C. J. 560.
The foregoing rules were early adopted, and have been consistently applied and followed, in this jurisdiction. Watkins & Co. v. Kobiela, 84 Neb. 422, 121 N. W. 448; American Surety Co. v. School District, 117 Neb. 6, 219 N. W. 583.
In the instant case the contract of hiring was made in
Appellee cites as controlling, and relies on, Milestone System v. Gasior, 160 Md. 131, 152 Atl. 810, and similar precedents. We quote from the Gasior case, viz.: “If one engage in the business of letting, for a reward, to the public automobiles to be used and driven by the hirer, with or without guests or passengers, according to his pleasure, the success of the enterprise depends upon the immediate command of automobiles for instant, safe, and satisfactory use while hired; and there is so much danger involved to the class which hires, and to those who are the occupants of the automobiles they have rented, if the automobiles be not in reasonably safe condition for the normal purposes to which they may forthwith be put while let, that the law, notwithstanding some dissent, casts upon the letters of the use of automobiles the affirmative duty to know that the automobile rented is in fit condition for the purposes for which it is to be at once used.”
Applied to the instant case, the words, “for the normal
As bailor, under the facts in this case, he is not liable for injuries to a third person by the bailee’s negligent use of the property bailed. Fisher v. Fletcher, 191 Ind. 529, 133 N. E. 834; Robinson v. Bruce Rent-A-Ford Co., 205 Ia. 261, 215 N. W. 724; Hartley v. Miller, 165 Mich. 115, 130 N. W. 336; Eklof v. Waterston, 132 Or. 479, 285 Pac. 201.
There is no evidence in the record that this automobile was defective so as to be dangerous to the public, or to the occupants thereof, when it was being operated at a lawful speed within the limits of the contract. In fact, the following evidence introduced on behalf of plaintiff is uncontroverted on that subject: “Q. What did you do, — how fast,— first, I will ask you if you drove up Eleventh street first? A. Yes. Q. After you left the place where Mrs. McWilliams lived? A. Yes, sir. Q. And how fast did you drive along in there? A. Twenty — twenty-five miles an hour. Q. And did you, — was there anything that called your attention, — how did the car operate along there? A. It worked all right along there.” The evidence is also without dispute that, when this automobile was driven north on Tenth street in a careful manner over the portion of the street where later the accident in suit occurred, no accident happened, and no structural or mechanical defect was developed. It was only on the return trip over the same road, made at a speed far in excess of that contemplated by the contract of hiring, that it is claimed that
It is also to be noted that plaintiff maintains this action strictly in the capacity of a “guest.” The statute defines “guest” as any passenger or person riding in a motor vehicle as a guest, or by invitation, or not for hire. Section 39-1129, Comp. St. Supp. 1933, provides: “The owner or operator of a motor vehicle shall not be liable for any damages to any passenger or person riding in said motor vehicle as a guest * * * unless such damage is caused by the driver of said motor vehicle being under the influence of intoxicating liquor or because of the gross negligence of the owner or operator.” Recovery is not sought in this case as against Lang on the basis of Griffin being under the influence of intoxicating liquor. In Heesaker v. Bosted, 131 Neb. 42, 267 N. W. 177, where the capacities of owner of the car and operator thereof were united in a single individual, and the defect charged was the presence of a defective boot around a defective tire, which was charged to be the cause of a blow-out which occasioned the accident, this court, in effect, adjudged the case within the protection of the guest statute so as to require proof of gross negligence to sustain recovery. In the present case, Lang is the owner and Griffin is the operator of the car, and the question here presented is whether in this case, under this statute, the evidence must establish gross negligence on part of Lang to support the judgment entered against him in this case. A careful consideration of all the evidence in the record leads inevitably to the conclusion that gross negligence is not established. But this question may not be deemed necessary to a proper disposition of the case. Even if we assume that the guest statute is inapplicable, and that the payment df the consideration of the contract of
It follows that the judgment entered by the district court in this case against defendant Lang is not supported by the evidence in the record, and is erroneous. Therefore, such judgment is reversed, and as to defendant Lang the action is dismissed.
Reversed and dismissed.