Van Horn v. Simpson

153 N.W. 883 | S.D. | 1915

McCOY, P. J.

About November 12, 1910, plaintiff claimed that while he was driving a team of horses attached to a farm wagon, upon a public highway, the defendants, acting jointly, so negligently operated and managed an automobile that the same came in contact with said team and vehicle, thereby frightening and scaring said horses, causing them to become unmanageable and run away, violently throwing plaintiff from said wagon upon the ground and running over and thereby violently injuring him. There was verdict and judgment for plaintiff against both defendants jointly, and defendants appeal, assigning errors at law occurring on the trial, and insufficiency of the evidence to sustain the verdict.

[1] Appellant urges that the court erred in overruling the objection to the exhibition of plaintiff’s injured limb to the jury. The physician who treated plaintiff’s injury from -its occurrence to the time of trial testified that the then present injury was the result of the accident. We are of the view that no- error was committed in permitting the jury to view the injured leg.

[2] Appellant also urges that the court erred in permitting the plaintiff to examine the defendant Simpson as an adverse party under the statute. This was a matter largely in the discretion of the trial court, and no abuse of such discretion appears.

[3,4] Appellant contends that the evidence is insufficient to justify a verdict against defendants jointly, and is especially insufficient to sustain a verdict against defendat Simpson. We are of the view that this contention is not tenable. It appears from the evidence that defendant Anderson was the owner of and was driving the automobile, and that defendant Simpson was in the car with him at the time of the accident; that the automobile approached plaintiff from behind, and in running around plaintiff’s wagon and team at a rapid speed the auto came in contact with the whippletree, pushing the same upon the rump of the horse. Respondent testified that his horses were walking when the auto swung around them; that the pushing of the whippletree upon the horse made them jump-; that the auto was crowded in close to their heads and crowded them off the grade into- the ditch. The testimony also shows that these two defendants at the time in question were copartners in the real estate business, and that this auto was then transporting both defendants in the prosecution of -such -co-partnership business; that it was then being used as an instrument for the benefit and within the scope of the partnership business; that Simpson was not a passenger or gratuitous guest of Anderson in said car, but was a party interested in the purpose and business in which such -car was then being operated. We are of the view that this testimony tended to- make both appellants joint participants in the alleged negligence. Under such circumstances the appellant Simpson, by imputation, was liable for the negligent acts of Anderson. As a member of such copartnership Anderson was -the agent of Simpson. Judge v. Wallen (Neb.) 152 N. W. 318; Koplitz v. St. Paul, 86 Minn. 373, 90 N. W. 794, 58 L. R. A. 74. We are of the view that the instruction of the court on this proposition, although not so clear and definite as it might h-ave been, submitted to -the jury the question of joint liability, and that as so- submitted it did not establish the law of this -case to be -otherwise than the general -rule.

[5] It is apparent from, the record that errors were committed -in the reception and rejection of testimony and in instructions, but such erroneous rulings and instructions were in favor of appellants, and cannot now be used as a 'basis of reversal of judgment. We are of the view that the- evidence was sufficient to sustain the verdict and judgment against both defendants jointly.

The judgment and order appealed from are affirmed.

WHITING, J., dissenting.