105 Neb. 184 | Neb. | 1920
. Defendants appeal'from a judgment for f1,950 recovered for personal injuries received by plaintiff in an automobile collision.
Plaintiff’s husband was driving west on L street in the city of Lincoln with his wife and infant child, when his Ford automobile was struck by a seven-passenger Overland car at the intersection of Eighteenth and L streets. The Ford car was turned completely around and all of the spokes were torn from its right hind wheel. Plaintiff was thrown from the automobile and suffered painful and permanent injuries. The Overland car was owned by defendant Peter P. Luther, and was being driven by his daughter, defendant Margaret Luther.
1. Numerous assignments of error are presented, dealing mostly with the instructions given or with instructions requested by defendants and refused. One of the questions raised is that of imputed negligence. On this issue the court instructed the jury: “Negligence on the part of the plaintiff’s husband, from the mere fact alone that plaintiff’s husband was driving the car, would not be considered in law the negligence of the plaintiff herself, nor affect in any degree her right, if any, to recover, as the wife is ordinarily considered a passenger in the car driven by her husband, and not chargeable with the direction, control, nor manner of driving.”
This court has held: “Except with respect to the relationship of partnership, or of principal and agent, or of master and servant, or the like, the.doctrine of imputed negligence is not in vogue in this state.” Hajsek v. Chicago, B. & Q. R. Co., 68 Neb. 539; Craig v. Chicago, St. P., M. & O. R. Co., 97 Neb. 586. Negligence on the part of a husband in driving an automobile, therefore, cannot be imputed to his wife who is riding with him, unless the parties are engaged in an enterprise giving the wife the power and duty to direct or to assist in the operation and management of the car. 8 L. R. A. n. s. 656, note (Cotton v. Will-mar & S. F. R. Co., 99 Minn. 366); L. R. A. 1915A, 764, note (Christopherson v. Minneapolis, St. P. & S. S. M. R.
2. Complaint is made of the court’s instruction No. 5, which told the jury that defendant, Margaret Luther, in this case was the agent of her father, and the father was liable for any actionable negligence on her part in driving. The father Avas not present at the time of the accident, but the car was being driven by the daughter, with his knoAvledge and consent, to convey members of the family to church. He testified that the automobile was kept for the pleasure and convenience of the family; that the daughter usually drove it; and that taking the family to church Avas one of the purposes for which it was kept. The question presented by defendant is new in this jurisdiction. But by the Aveight of authority, in the jurisdictions where the question has been determined, the owner of an automobile kept for family purposes is liable for injuries inflicted upon a stranger as a result of the negligent driving of one of his children, where the car is occupied by members of the family and is being used for one of the purposes for which it is kept. 5 A. L. R. 226, notes. See, also, 41 L. R. A. n. s. 775, notes (McNeal v. McKain, 33 Okla. 449); 50 L. R. A. n. s. 59, notes (Birch v. Abercrombie, 74 Wash. 486) ; L. R. A. 1916F, 223, note (Griffin v. Russell, 144 Ga. 275); Denison v. McNorton, 228 Fed. 401' Some of the courts have drawn a distinction between cases where the car is being used by one of the children alone and Avhere it is occupied by other members of the family as well, but this distinction need not here bé considered.
It is objected that the court erred in giving instruction No. 7, Avhich told the jury that a person violating a statute
On account of some lack of harmony, it may be advisable in this connection to review the former decisions of this court with respect to the question whether the violation of a statute or ordinance enacted for the safety or protection of persons or property constitutes negligence per se, or is only evidence of negligence, for the jury to consider with all the other evidence in the case on that issue. The rule that the violation of a statute requiring signals to be given by railroad trains approaching crossings is evidence to be considered by the jury in ascertaining whether defendant was guilty of negligence is first laid down in Nebraska in Omaha, N. & B. H. R. Co. v. O’Donnell, 22 Neb. 475, and with respect to the violation of a city ordinance of this nature in Union P. R. Co. v. Rassmussen, 25 Neb. 810. The question is discussed at length by Irvine, C., in Chicago, B. & Q. R. Co. v. Metcalf, 44 Neb. 848, beginning at p. 859. The doctrine is reiterated that the violation of a.statute requiring a bell to be rung or whistle to be sounded by a
It has been argued in another case now under consideration (Dorrance v. Omaha & C. B. Street R. Co., p. 196, post) that a different rule applies to statutes from that relating to ordinances; but the same rule is applied to the violation of a statute in Omaha Street R. Co. v. Duvall, 40 Neb. 29; Omaha & R. V. R. Co. v. Talbot, 48 Neb. 627; Missouri P. R. Co. v. Geist, 49 Neb. 489; Wallenburg v. Missouri P. R. Co., 86 Neb. 642, 646; and to the violation of an ordinance in Riley v. Missouri P. R. Co., 69 Neb. 82, 87; Omaha Street R. Co. v. Larson, 70 Neb. 591; Lincoln Traction Co. v. Heller, 72 Neb. 127; Olson v. Nebraska Telephone Co., 87 Neb. 593; Rule v. Claar Transfer & Storage Co., 102 Neb. 4.
In a note in 5 L. R. A. n. s. 226 (Sluder v. St. Louis Transit Co., 189 Mo. 107), a large number of cases are cited upholding the doctrine of this court. The supreme courts of the United States, of New York, Massachusetts, California, Illinois, Indiana, Iowa, Georgia, Kansas, Kentucky, Maryland, Michigan, Minnesota, Missouri, Montana, NeAv Hampshire, Ohio, Oregon, Pennsylvania, South Carolina,, Utah, Wisconsin, Virginia, Washington, also the courts of Ontario and England, take the view that the violation of a duty prescribed by such a statute or ordinance is evidence proper for the consideration of the jury, to be considered with all the other circumstances in the case upon the question of the defendant’s negligence.
Mr. Justice Lamar says in Grand Trunk R. Co. v. Ives, 144 U. S. 408, 418: “Indeed, it has been held in many cases that the running of railroad trains
^ There are decisions which at first reading may seem to be inconsistent with this rule, but most of thein may be distinguished on account of the different character and purpose of the statutes involved. Statutes requiring protective devices to be placed upon machinery, upon barbed-wire fences, scaffolding statutes, railroad fencing statutes, fire escape statutes, and other statutes of like nature, impose a mandatory and affirmative duty upon the owners of such property, and even in states where the violation of speed statutes is held to be only evidence from which negligence may be inferred, the courts generally hold that a failure to perform a mandatory duty so enjoined is negligence per se, and if any person to whom the duty is owed, or for whose protection the statute is enacted, is injured in consequence of such violátion, a case is made.
In New York the violation of a statute requiring fire escápes is held to be negligence for which one injured in consequence of the failure to supply the required appliances is liable in damages. The cases of Strahl v. Miller, 97 Neb. 820, and Hoopes v. Creighton, 100 Neb, 510, considering a statute relating to fire protection by hotel keepers, Vanderveer v. Moran, 79 Neb. 431, a statute relating to guarding barbed-wire fences, McCarthy v. Ravenna, 99 Neb. 675, a statute requiring machine shafting to be guarded, Butera v. Mardis Co., 99 Neb. 815, a statute relating to hoists and scaffolds, are cases illustrating the latter principle. Other cases stating the same principle are cited in the opinion in the case last mentioned.
At the time of the decision in the O’Donnell case automobiles had not been - invented, and the numerous serious and fatal accidents to occur from reckless driving could not be foreseen. If the court were now establishing a rule for the first time, it might be inclined to follow the other line of decisions, but that which has been the law of the state, and accepted as such by the people and the courts for over 30 years, ought not to be set aside without the most convincing reasons. /
The case of Walker v. Klopp, 99 Neb. 794, may seem to be, and has been considered by district judges and some
The remaining assignments of error need not be considered in detail. Most of them are disposed of by the views expressed above. The question of comparative negligence presented is covered by section 7892, Rev. St. 1913. None of the complaints made as to the admission or exclusion of evidence warrant a reversal. The instruction requested by defendants, that “the regulation by law of speed of motor vehicles is primarily made for the protection of pedestrians and vehicles, other than motor vehicles, occupying or using the street,” was properly refused.
An examination of all the questions presented fails to reveal any reversible error in the record, and the judgment is
Affirmed.