Reader v. Ottis

Quinn, J. Action brought by Joseph Reader, as the father of Grace Reader, a — 337 — minor, against the respective owners of two automobiles and the operators thereof, jointly, to recover for personal injuries sustained by such minor, through the alleged negligence of the operators of such cars. At the close of plaintiff’s testimony the trial court granted a motion to dismiss the action as to the defendants Ottis and La Valle, upon the ground that the proofs failed to show any negligence on their part. From an order denying his motion for a new trial as to said defendants, the plaintiff appealed. On May 8, 1919, the defendant Eiger Jester, then 16 years of age, in company with Jane Eeiss, George Kneip and Grace Header, all about the same age,, were returning to St. Paul in a Buiek touring car owned by the defendant Lee T. Jester, over the White Bear road, which is paved to the width of 16 feet. When about two miles out from White Bear Labe the defendant La Valle, driving a Packard car, owned by the defendant Ottis, in the line of his duty, as the servant of the owner thereof, overtook the Buick. TJpon the trial plaintiff offered testimony to the effect that the Buick car had been going at the rate of about 18 or 20 miles an hour; that when La Valle overtook it he sounded his horn; that Jester, driving the Buiek, turned to the left, and the Packard went ahead, Jester remarking that: “No ear is ever going to get ahead of me.” That he then quickened his speed and passed the Packard at the rate of about 45 miles an hour; that they raced for some distance when the Packard passed the Buiek; that the Packard then kept the center of the pavement as the Buiek again attempted to pass, going first to the right, then to the left at the rate of from 50 to 60 miles, but could not get by. There was a curve of about 45 degrees in the pavement ahead, the left wheels of the Buick went off the edge of the pavement and when the driver undertook to turn the curve the car went into the ditch, seriously injuring Miss Header. While the cars were racing Kneip and both of the girls tried to persuade Jester to desist therefrom, but to no avail. The four young people had been out on a pleasure trip to White Bear Lake. Our statute provides, in effect, that no person shall drive a motor vehicle upon any public highway of this state at a speed greater than is reasonable and proper, having regard to the traffic and use of the high — 338 — way, or so as to endanger tbe life or limb or injure the 'property of any person. It also provides that if the speed of any motor vehicle operated on any highway outside of an incorporated city, town or village, exceeds 25 miles an hour for a distance of one-quarter of a mile, such rate of speed shall be prima facie evidence that the person operating the same is running at a -rate of speed greater than is reasonable and proper. G. S. 1913, § 2635. We are of the opinion in view of the statute and the showing made, that it was for the jury to say whether the driving was such as to endanger the safety of others lawfully upon such highway, and whether the same was done in concert. If the jury should find in the affirmative on those issues, then it would be authorized to hold the respondents liable, provided, of course, the proofs were sufficient upon the other issues in the case. 1 Cooley, Torts (3d ed.) p. 249; De Carvalho v. Brunner, 223 N. Y. 284, 119 N. E. 563; Burnham v. Butler, 31 N. Y. 480; Brown v. Thayer, 212 Mass. 392, 99 N. E. 237; Potter v. Moran, 61 Mich. 60, 27 N. W. 854; Hanrahan v. Cochran, 12 App. Div. 91, 42 N. Y. Supp. 1031. The question is, was there evidence sufficient to fairly sustain a finding by the jury, that the respondents were guilty of negligence which contributed to the injury. The law imposes upon all persons using a public highway, the obligation to exercise ordinary care to avoid inflicting injury upon others. Our highways are not designed or maintained as places for racing automobiles, and those who use them for such purpose do so at their peril. Nor does the fact that the injured party was riding in one of the racing cars necessarily relieve the respondents from liability. The car in which she was riding had been going at a moderate rate of speed. When the Packard passed it the speed quickened and the racing began. The girl could not avoid the peril. She protested with the driver, as did the other occupants of the car, hut to no avail. She could do no more. She had no control or right of control over the driver, -nor Was she engaged in a joint enterprise with the driver and the others occupying the automobile at the time. She was entitled to the same consideration from the driver of the Packard as though riding in a car not in the race. Clearly it — 339 — is the duty of a person driving a car upon a highway to yield room to pass to one following at a more rapid pace, when it is needful and practicable, and when requested so to do. G. S. 1913, § 3634; Mark v. Fritsch, 195 N. Y. 282, 88 N. E. 380, 22 L.R.A.(N.S.) 632, 133 Am. St. 800. The rule is well settled that, where two or more tort-feasors, by concurrent acts of negligence, which, although disconnected, yet, in combination, inflict injury, all are liable. Brown v. Thayer, supra; Feneff v. Boston & Maine R. R. 196 Mass. 575, 82 N. E. 705. See also line of decisions cited in note on page 158, Vol. 20 R. C. L. where it is held that one who is riding in a vehicle or car, the driver of which is not his agent or servant, nor under 'his control, and who is injured by the negligence of a third person, and of such driver, may recover of the third person for the injuries inflicted through such concurring negligence. The question of negligence on the part of the driver of the Packard car was, in our opinion, for the jury. Reversed.