3.

4.

the

5.

I. Common use of instrumentality of

transportation.

A. Furtherance of business purpose sole objective.

1. Copartners in real estate business.

Plaintiff was injured when his team of horses were struck by defendants' automobile, causing them to become unmanageable and to run away. Plaintiff alleged that defendants were acting jointly in the operation and management of the automobile at the time of the accident. A was the owner of, and was driving, the automobile, and the other defendant, S, was in the car with him at the time of the accident.

The automobile approached plaintiff from behind, and in running around plaintiff's wagon and team at a rapid speed, the automobile came in contact with the whiffletree, pushing the same around the rump of the horse. Plaintiff testified that his horses were walking when the automobile swung around them; that the pushing of the whiffletree upon the horses made them jump; that the automobile was driven close to their heads and crowded them off the grade into a ditch. the accident were copartners in the real estate business, and the automo

bile

A and S at the time of

was then transporting both defendants in the prosecution of such partnership business. There was a verdict and judgment in favor of

plaintiff against both defendants and defendants appealed. In affirming the judgment, the court held that there was sufficient evidence to sustain a joint verdict against defendants, since they were joint participants in the alleged negligence, and that both defendants were engaged in a joint enterprise which rendered each liable for the negligence of the other within the scope of such enterprise. Van Horn v. Simpson, 35 S. D. 640, 11 N. C. C. A. 779, 153 N. W. 883 (1915).

2. Traveling salesmen dividing cost of trip.

One of three traveling men, all of whom were going for some distance in the same direction, owned an automobile. They arranged to set out together in the machine, intending to pick up a fourth traveling man at a point ahead. While they had made no formal agreement with respect to the division of costs of the trip, the evidence showed that it was customary for traveling men going together under these circumstances to prorate the costs, which would include gasoline, oil, wear and tear on the car, including tires, "and other expenses connected with the trip." The plaintiff was one of the occupants of the car, and he rode in the back seat. The owner rode on the front seat, and drove. After the party had gone some distance the owner negligently drove the car in

front of a train at a railroad crossing, with the result that the machine was practically destroyed and the plaintiff sustained serious personal injuries. The suit was against the railroad company to recover on account of the injuries, as well as for property loss sustained by the owner of the machine, whose right had in the meantime been assigned to the plaintiff. As against the suit for personal injuries the defendant set up the effect of the evidence already recited and of testimony by the owner of the machine and by the plaintiff to the effect that the different members of the trip undertook the drive together upon the clear understanding that the usual division of expenses would be made. It was contended, in an appeal by the defendant from a judgment in the plaintiff's favor with respect to the action for personal injuries, that the trial court had erred in refusing to instruct that if the jury should find that there was an understanding that the members of the party should share equally the expenses, the negligence, if any, of the owner and driver would be imputed to the plaintiff so as to bar recovery. In a decision reversing the judgment as affecting recovery for injury, the court sustained the contention of the defendant, saying that the contractual relations of the plaintiff and his com panion were substantially the same as if the men had jointly hired an auto

mobile with which to make the trip, on the understanding that they would jointly pay the expenses and mutually and concurrently direct the journey and the details thereof; so that "the trip was * * * a joint enterprise in which these parties had a community of interest and in which they all equally had a voice and a right to be heard respecting the details of the journey." The court added that upon the evidence the defendant, had its counsel so requested, would have been entitled at the trial to have the jury instructed as a matter of law that the negligence of the driver was imputable to the plaintiff. Derrick v. Salt Lake & O. Ry. Co. Utah -,168 Pac. 335 (1917).

3. Copartners in practice of medicine.

In the case of Hurt v. Yazoo & M. V. R. Co., 140 Tenn. 623, 205 S. W. 437 (1918), one of the two actions involved in the appeal was by an administrator to recover on account of the death of his intestate resulting from a collision between a train of the defendant and an automobile in which the deceased was riding. The automobile belonged to and was being driven by one L, who was the decedent's partner in the practice of medicine and surgery. The men were returning after the performance of an operation on a patient of the deceased. The latter had performed the opera

8.

9.

tion, his partner L assisting him. The collision occurred at a road crossing. and it was contended by the defendant that the automobile was negligently driven upon the track in front of the train. It appeared that the attention of L was absorbed by his driving, on account of the roughness of the road at the place, so that he did not see the train until he was too near the track to stop, while it was shown that the deceased failed to see the train until almost the same instant that his partner observed it. In the course of an opinion reversing a judgment entered on a verdict directed for the defendant the court, although finding that the circumstances tended as strongly, or more strongly, to justify an inference of independent negligence on the part of the deceased as it indicated such negligence on the part of L, the driver, so that the doctrine of imputable negligence really was not involved in the decision upon the issue of contributory negligence, said that the deceased and his partner

at

the time of the collision "were jointly interested in the success of the operation, and in that sense they

were

upon a joint enterprise. The

interest they had in the journey would doubtless continue until they had re

turned

until they had declared the journey at an end by act or word."

4. Salesman taking prospective customers to see piano.

One B, a piano salesman, went in his employer's automobile to the home of the plaintiff and endeavored to sell a piano to the plaintiff and his wife. He finally suggested to the family that they go with him in the automobile to a nearby town to look at one of the company's pianos. The plaintiff and his family consented, and the party set out, the plaintiff sitting in the front seat beside B, who drove, while his wife, his daughter and a grandchild sat in the back seat. They made the outgoing trip and examined the piano, but on the return trip the automobile was struck at a crossing by an engine of the defendant under circumstances tending to show negligence on the part of the defendant railroad company and also contributory negligence on the part of the driver, B. As a result of the collision the plaintiff sustained injuries. At the trial of the case he obtained judgment. In an appeal by the defendant the question of imputed negligence was raised, and the court, in the course of an opinion reversing the judgment and granting a new trial treated the point in question as follows: "The evidence

**

*

those

of plaintiff and his wife shows conclusively that plaintiff, on the occasion in question, was neither a guest nor an invitee of Bird, the driver of the automobile, as terms are usually understood and applied in cases where the question of imputed negligence is involved. Bird [the driver] and Mr. and Mrs. Lawrence [the plaintiff and his wife], as shown by the undisputed evidence, made the trip in furtherance of a common object or enterprise, in which they were in a business sense equally interested. In other words, the trip was a business matter and in no sense a social affair. The case, therefore, falls within the rule announced in the case of Derrick v. Salt Lake & O. Ry. Co. (recently dedecided by this court), 168 Pac. 335. The negligence of Bird, if he were negligent in the management of the automobile just prior to and at the time of the accident, was imputable to plaintiff." It may be noted that there was in the case, however, substantial evidence to show, in addition to the driver's negligence imputable to the plaintiff, independent negligence on the part of the latter in

failing to observe danger and to admonish the driver. Lawrence V Denver & R. G. R. Co., Utah 174 Pac. 817 (1918).

5. Coemployees on passenger train.

A railroad conductor of a passenger train on the B railroad, while crossing the A railroad track, was killed in a collision with a freight train on the A railroad track. Decedent's administratrix sued the A railroad company for the alleged wrongful death. Twɔ paragraphs of the complaint alleged negligence of the defendant's employees in the operation and management of the train which collided with the train on which decedent was conductor, and the third paragraph proceeded upon the theory that the collision was the result of the reckless. wanton and wilful act of the defendant's servants. Defendant pleaded the general issue, contributory negligence of the decedent, and contributory negligence of the engineer of the passenger train by negligently propelling his train upon the crossing in front of defendant's moving train, and alleged that the negligence of the engineer was imputable to the decedent on the ground that the engineer and the conductor of the passenger train were jointly in charge and control thereof. A statute provided that "when the tracks of two railroads cross each other at grade, engineers and conductors must cause the train of which they are in charge to come to a full stop within 100 feet of such crossing, and not proceed until they

(4)

en

know the way to be clear." The passenger train of which decedent was conductor was composed of an engine and tender and four coaches, making a train about 270 feet long. Defendant's train was composed of an gine and tender and 26 or 28 loaded freight cars. The passenger train was going eastward, and defendant's freight train was approaching the crossing from the south. It was conceded that defendant's servants in control of its freight train were guilty of simple negligence, but defendant insisted that the engineer and conductor of the passenger train were guilty of negligence which proximately contrib uted to the conductor's death, and that defendant's servants were not guilty of wantonness nor intentional wrong. The evidence was irreconcilably in conflict as to whether the passenger train made a stop as required by stat ute before proceeding upon the cross

ing.

The engineer of the passenger train was not examined as a witness, and there was no positive evidence that he saw the freight train before going upon the crossing. But there was evidence which tended to show that when the passenger train started for the crossing, after stopping, the way was clear, and that defendant's train was then 600 feet distant from the crossing and that the passenger train was moving at the rate of 4 miles an

hour while passing the crossing. The undisputed evidence showed that the engine of defendant's train struck the passenger train at a point between the rear coach and the one just forward, the engine of the passenger train then being 200 feet beyond the crossing eastward; that the freight train was running at the rate of 8 to 10 miles an hour, thus showing that even when the passenger engine reached the crossing, the freight train was more than 100 feet distant from the crossing. If the freight train was seen by the engineer of the passenger train when it stopped, as testified, the freight train must have been more than 600 feet distant from the crossing. Defendant appealed from a judgment in favor of plaintiff. The court in reversing and remanding the cause, held that defendant's plea showed a co-operation of the engineer and the conductor, in a joint enterprise, in such sort as brought the case within the doctrine of imputed negligence; that whether the conductor and engineer of the passenger train, or either of them, was guilty of negligence in proceeding upon the crossing was a question for the jury; that under the conditions and circumstances of the case, it was proper for the court to submit the question of wantonness vel non to the jury, and said: "The co-operation of the engineer and conductor, their joint