Lloyd v. Northern Pacific Railway Co.

Parker, J. The plaintiff, Lloyd, seeks recovery of damages for injury to his automobile, claimed to have been caused by the negligent operation of one of the trains of the defendant railway company, at a public crossing in the village of Eltopia, in Franklin county. Trial in the superior court for that county, sitting with a jury, resulted in verdict and judgment in favor of the plaintiff, from which the defendant has appealed to this court. Respondent’s automobile was being driven by Richard Colley, on Sunday, June 24, 1917, when it was struck by one of appellant’s trains, causing the injury thereto for which recovery is sought. For a period of some three months prior thereto, Colley had been working for respondent upon his farm, situated some two miles distant from Eltopia, under an employment agreement by which Colley was to receive a certain sum per month, and the use of the automobile for his own pleasure, from time to time, as occasion therefor might arise. During the afternoon of the Sunday in question, Colley took a young lady for a pleasure ride in the automobile. Just what their destination was is not clear; but upon their return they went a short — 59 — distance out of their way, with a view, on the part of Colley, of going through Eltopia, and calling upon the railway company’s agent there and procuring an express package which he thought might he there for respondent. He had not been instructed by respondent to call for any such package; nor is there anything in the record to show that either he or respondent thought of his calling upon the agent of the railway company for any such package when he started with the automobile. He had, however, on some previous occasions, brought packages from the agent of the railway company which had been shipped to Eltopia in respondent’s name. This he had done without any special instructions from respondent. Upon this occasion, Colley received from the agent a package addressed to respondent, and placed it in the automobile, when he and the young lady proceeded in the automobile on their way towards respondent’s farm, which rendered it necessary for them to cross appellant’s track in Eltopia; and it was while so crossing the track that the automobile was injured by being struck by one of appellant’s trains. While the jury returned a general verdict in favor of respondent, awarding him damages in the sum of $450, the jury were also asked, and answered, special interrogatories submitted by the court, as follows: “Interrogatory 1: Was there negligence on the part of the Northern Pacific Railway Company, which negligence was the proximate cause of the damage to plaintiff’s automobile? Answer: Yes. “Interrogatory 2: Was there negligence on the part of Richard F. Colley, the driver of the automobile, contributing to the damage to the plaintiff’s automobile? Answer: Yes. “Interrogatory 3: At the time of the collision was Richard F. Colley driving or using the automobile for or on behalf of the plaintiff, N. C. Lloyd, or in con — 60 — nection with the plaintiff’s business, or in the course of his employment as an employee of the plaintiff? Answer: No. “Interrogatory 4: At the time of the collision, was Richard F. Colley driving the automobile for private purposes or for his own pleasure? Answer: Yes.” A motion for judgment in appellant’s favor, notwithstanding the verdict, was timely made by its counsel, the denial of which by the trial court is assigned as error. The first contention made in appellant’s behalf is, in substance, that the evidence conclusively shows that Colley was, at the time of the injury of the automobile, acting in the course of his employment for respondent, so that his contributory negligence thereby became the contributory negligence of respondent preventing his recovery, and that the trial court should have so decided as a matter of law. It seems to us that, under the circumstances here shown, the question whether or not the driving of the automobile at the time it was injured was being done by Colley as the agent and employee of respondent, or was being done by him for his own private purpose and pleasure, was a question for the jury to decide. Aside from the fact that Colley procured from the railway company’s agent the package for respondent, and had it in the automobile when it was injured, there seems to be but little room for arguing that he was at that time doing anything’ other than for himself. And we think the mere fact that he had procured the package just before the automobile was injured, and then had it with him in the automobile, did not so plainly render his driving the automobile at the time it was injured the performance of his duties as respondent’s employee that it could be so decided as a matter of law. The jury we think might, under all the circumstances, — 61 — have well concluded that Colley’s procuring of the package was a mere matter of accommodation, as if such act had been performed by a neighbor. Our conclusion upon this branch of the case finds support in our decisions in Hammons v. Setzer, 72 Wash. 550, 130 Pac. 1141; George v. Carstens Packing Co., 91 Wash. 637, 158 Pac. 529, and Warren v. Norguard, 103 Wash. 284, 174 Pac. 7. It is further contended in appellant’s behalf that the contributory negligence of Colley, as found by the jury, was in any event imputable to respondent, preventing his recovery, and that the trial court should have so decided as a matter of law. This contention is rested upon the theory that, because of the relationship between Colley and respondent with reference to the automobile, though it only be that of bailor and bailee, respondent cannot recover for the injury to the automobile, because Colley’s contributory negligence would prevent his recovery for injury to the automobile. There was a time when the decisions of the courts seemed to support this view of the law; but in recent years, the weight of authority is, we think, decidedly to the contrary. In view of the special finding of the jury that Colley was, at the time the injury to the automobile occurred, driving it for his own pleasure, and not in the course of his employment as respondent’s employee, which finding we think the evidence fully supports, it seems plain that the relation then existing between him and respondent with reference to the automobile was merely that of bailor and bailee. Van Zile, Bailments (2d ed.), §§ 3 and 4; 6 C. J. 1101; 3 R. C. L. 72. Whether the automobile was in legal effect hired to Colley or gratuitously loaned to him, we think is of no moment here, since Colley would be no more the agent of respondent in one case than in the other. — 62 — In Gibson v. Bessemer & L. E. R. Co., 226 Pa. 198, 75 Atl. 194, 27 L. R. A. (N. S.) 689, there was involved the hiring of a horse from a livery stable keeper, and the killing of the horse by the railroad company while being driven by the bailee. The railroad company resisted the claim of damage made by the owner for the killing of the horse, upon the ground of the bailee’s contributory negligence in driving upon the track. Holding that the negligence of the bailee was not attributable to the bailor, the owner of the horse, preventing his recovery, Justice Potter, speaking for the court, observed: “And in Edwards on Bailments (3d ed., 1893), sec. • 392, it is said: ‘The hirer of wagons, or carriages and horses, receiving them into his custody to be used by him at his pleasure, becomes a bailee, and is in no sense a servant of the owner. He is responsible to the owner for the reasonable care of them, and to third persons for any negligence of his servants in the use of them. He is liable to third persons to the same extent as if he were the actual owner of the vehicles and teams used by him.’ And again, in 1 Thompson on Negligence (1901), sec. 512, it is said: ‘Unless the principles upon which the courts have at last settled have been grossly misconceived, the negligence of a bailee or his servants is not imputable to his bailor. ’ As far back as the case of. Bard v. Yohn, 26 Pa. 482, Justice Knox stated the law as follows (p. 489): ‘If one lets or hires to another a horse to be used exclusively for the purposes of the latter, the owner of the horse is in nowise responsible for the negligent manner in which the horse may be used. ’ “There is a difference where the owner sends a driver to manage and control the team and vehicle, for in so doing the owner retains the control, and may well be held accountable for the action of the driver, his servant and agent. But- in the present case no driver was furnished and the hirer assumed the care and control of the horse. There was no relation of — 63 — master and servant, or of principal and agent between the hirer and the liveryman, and the latter cannot be held responsible for the negligence of the former. Each must recover in his own right, if at all, and each must stand upon his own ground. Had Lantz, the hirer, brought suit and shown negligence by the defendant, and no negligence upon his own part, he could have recovered for damage to- himself, but not for damage to the horse or vehicle. His right of action depended in no way upon that of the present plaintiff, nor does the right of recovery in the present action depend upon the right of the bailee to recover.” In New York, L. E. & W. R. Co. v. New Jersey Elec. R. Co., 60 N. J. L. 338, 38 Atl. 828, 43 L. R. A. 840, there was involved a bailment arising out of the hiring of cars which were injured in a collision resulting from the concurring negligence of the bailee and the defendant company. It was sought by the defendant company to escape liability to the bailor, the owner of the cars, upon the ground of the bailee’s contributory negligence being in law imputed to the bailor. In concluding an exhaustive and well considered opinion, Justice Lippincott, speaking for the New Jersey court of appeals, said: “I cannot perceive that whether, in respect to this action, the duty of the defendant and the bailee were joint or separate can make any difference. If the same duty of care was due and owing to the plaintiff, then a common neglect of that duty would render them both liable as joint tort feasors. If the duty to plaintiff was a separate one which was neglected to be performed by each of them, although the duties were diverse and disconnected, and the negligence of each was without concert, if • such neglects concurred and united in causing the injury, the tort still is equally joint, and the tort feasors are subject to a like liability. Matthews v. Delaware, L. & W. R. Co., 27 Vroom 34. The bailee was bound to use reasonable care and diligence in the preservation of the property from in — 64 — jury. The 'defendant, in the operation of the electric car, was bound to exercise reasonable care in avoiding’ injury to the property of which the plaintiff was the owner. It would seem that the intervention of the negligence of the bailee could not shield the defendant from injury caused by its own negligence. Both might have been selected as joint tort feasors, or the action could be maintained against either. The conclusion reached is that the plaintiff had the right to sue either or both of these companies for the injuries arising from their negligence to the locomotive and cars of the plaintiff, and it is not a defence to the action that the accident was contributed to by the negligence of the other. Each is liable upon its own negligence, and the negligence of the bailee is not imputable to the plaintiff as a shield to the defendant against recovery.” In Sea Instcrance Co. v. Vicksburg, S. & P. R. Co., 159 Fed. 676, 17 L. R. A. (N. S.) 925, the Federal Circuit Court of Appeals for the Fifth Circuit had under consideration a bailment consisting of the leaving of cotton with a compress company, to be bailed. In holding that the loss of the cotton by fire, resulting from the negligence of the railway company, contributed to by the negligence of the bailee, would not prevent recovery by the insurance company as assignee of the bailor, Judge Shelby, speaking for the court, said in part: “A plaintiff cannot recover damages for an injury to which he has directly contributed by his own negligence. If the plaintiff's own fault, whether of commission or omission, has materially contributed to the injury, the plaintiff is without remedy against one also in the wrong. The converse of this doctrine ought to follow as a necessary corollary—that when one has been injured by the wrongful act of another, to which he has in no way contributed, he should be entitled to compensation from the wrongdoer, unless the negligence of someone towards whom he stands in the rela — 65 — tion of principal or master has materially contributed to the injury. The bailor, we hold, is not the principal or master of the bailee. ’ ’ In Spelman v. Delano, 177 Mo. App. 28, 163 S. W. 300, the court had under consideration a bailment in substance the same as that which is here involved; that is, it was the case of a farm hand having the use for his own pleasure of a horse belonging to his employer. While he was riding the horse, it was killed by the railway company of which the defendant was receiver, the death of the horse being the result of the negligence of the railway servants and the contributory negligence of the farm hand, the bailee. Holding that his contributory negligence was not imputable to the bailor, his employer, Judge Trimble, speaking for the court, made the following pertinent observations: “It must be remembered that the question in the case at bar does not involve a bailment in which the bailee is the agent or servant of the bailor, nor is there any privity of contract between them. Unless, indeed, it can be said that the bailor, merely by lending the horse, makes the bailee his agent to- care for the horse and thereby creates such a relation as will make the bailor responsible for the acts of the bailee. Now, it cannot be said that if the bailee had, after borrowing the animal for his own purpose, negligently ridden against another and injured him, the injured person could have any right of recovery against the bailor. If it be said that the bailor, by lending the horse, makes the bailee an agent for the care thereof and is thereby impliedly responsible for the latter’s conduct in reference thereto, and also makes it possible for the injury to occur, the answer is that the bailee is not the bailor’s agent in caring for the horse else the bailor would be responsible for a negligent injury committed by the bailee in using the horse, and this has never been held to be so. If the bailee failed to exercise the proper care, the bailor would — 66 — have a right of action against him; and he would also have a right of action against a third party for negligently injuring him. And when the negligence of the two concurs he can sue both jointly or sue either one as he chooses. And if lending the horse can be said to render it possible for the injury to occur, the act of lending was not such as to render plaintiff blameworthy in any degree. So that we have a case where a plaintiff, without fault or negligence of his own, is suing for a loss occasioned by the concurrent negligence of two others. In such case can one of the persons in fault set up in defense the fault of the other, ■as against the owner who is wholly without fault? We think not, and, while at first blush, the rule that the contributory negligence of a bailee cannot be imputed to a bailor when suing a third person for injuries to property, may seem unjust; yet, when the rule is confined to those bailments which do not involve any privity of contract or agency between the bailor and bailee, it will not appear to be so harsh and unreasonable as might be supposed.” That decision contains one of the best reviews of the cases upon this subject to be found in the books. The following decisions are also in harmony with and support this view of the law: Alabama Great Southern R. Co. v. Clarke, 145 Ala. 459, 39 South. 816; Currie v. Consolidated R. Co., 81 Conn. 383, 71 Atl. 356; Henderson v. Chicago Rys. Co., 170 Ill. App. 616; Goldsmith v. Chicago, Milwaukee &. St. Paul R. Co., 176 Ill. App. 336. Our own decisions are quite in harmony with this view of the law, though they deal only with the question of the contributory negligence of the drivers of vehicles resulting in injuries to passengers therein, both for hire and as an accommodation. See, Allen v. Walla Walla Valley R. Co., 96 Wash. 397, 165 Pac. 99, and our previous decisions therein cited. All of the decisions above noticed were rendered since the year — 67 — 1897. In the late work of Van Zile, Bailments, § 128, that learned author states the law to he as above indicated. The only decisions called to our attention which may be considered as lending support to the contrary view, are the following: Puterbaugh v. Reasor, 9 Ohio St. 484, decided in 1859; Forks Township v. King, 84 Pa. St. 230, decided in 1876, which decision, in so far as it may be regarded as authority upon this question is, in effect, overruled by the later decision of that court in Gibson v. Bessemer & L. E. R. Co., supra; Welty v. Indianapolis & V. R. Co., 105 Ind. 55, 4 N. E. 410, decided in 1886, a critical reading of which case we think will show that it is, in at least some measure, distinguishable from the one before us; and Illinois Cent. R. Co. v. Sims, 77 Miss. 325, 27 South. 527, 49 L. R. A. 322, decided in the year 1900. "We are quite convinced that the decided weight of authority at the present time, and also the better reason, supports the view that the contributory negligence of Colley was not imputable to respondent, under the facts of this case as found by the jury. The judgment is affirmed. Holcomb, Mount, and Fullerton, JJ., concur.