Opinion
Argued February 2, 1928
Affirmed February 21, 1928
From Clatsop: J.A. EAKIN, Judge.
AFFIRMED.
For appellant, Columbia Soda Works, there was a brief over the names of Messrs. Carey Kerr and Mr. Omar C. Spencer, with an oral argument by Mr. Marvin K. Holland.
For appellants Johnson Morrison there was a brief over the names of Messrs. Wilbur, Beckett, Howell Oppenheimer and Messrs. Norblad Hesse, with an oral argument by Mr. Frank C. Hesse.
For respondent there was a brief and oral argument by Mr. James L. Hope.
These actions, by stipulation consolidated here and in the lower court, arose out of an automobile collision in which a boy, about thirteen years of age, named Frank Peters, was injured. The accident occurred on one of the main streets of the City of Astoria in the afternoon of August 13, 1924. The boy was standing on or near the tail-gate of a Dodge truck operated by Johnson Morrison, a copartnership engaged in the retail grocery business. He was not in the employ of these defendants, but there is evidence that he was on the truck with their knowledge and consent and was permitted to assist in the delivery of goods to their customers. The truck, facing east, had stopped for the purpose of making a delivery on the south side of Commercial Street, which runs east and west. After the delivery had been made, the driver started to back the truck diagonally across Commercial Street with the apparent intention of driving west thereon. When the vehicle reached approximately the center of the street, an east-bound Ford truck owned by the Columbia Soda Works collided with it, throwing the boy to the pavement, whereby he was seriously and permanently injured.
In one action the father seeks to recover for hospital and medical expenses incurred as a result of this accident. The other action was commenced by the father as the guardian of his son to recover damages for personal injuries the boy is alleged to have sustained. Both actions involve the same specifications of negligence. It is the theory of the plaintiffs that the damage sustained was the proximate result of the combined and concurring negligence of both truck drivers. The driver of the Dodge truck, an employee of Johnson Morrison, was charged with negligence in backing the automobile (1) without giving any signal or sounding any warning; (2) without looking for oncoming traffic, and (3) at a dangerous and excessive speed. The defendants who constitute the copartnership of the Columbia Soda Works are charged by plaintiff with negligence in that their employee drove the Ford truck (1) at a reckless and unlawful rate of speed, to wit, in excess of twenty miles per hour, and (2) without keeping a lookout for other vehicles using the street. The Columbia Soda Works answered denying the negligence charged and alleging affirmatively and in substance that the accident was due to the contributory negligence of the Peters boy and to the negligence of the driver of the Dodge truck. In charging negligence against Johnson Morrison, the complaint of the plaintiff is substantially adopted. Johnson Morrison answered denying negligence and, in averring that the negligence of the Columbia Soda Works was the proximate cause of the accident, likewise adopted the specifications of negligence as charged by plaintiff. They also asserted that the boy was guilty of contributory negligence.
Summarizing the issues under the pleadings, the plaintiff alleged that negligence of both defendants was the proximate cause of the accident; both defendants charged the boy with contributory negligence, and each defendant averred that the other, if anybody, was the one to be held responsible. A verdict in both actions was had for the plaintiff against both defendants and from the judgments entered thereon each defendant has separately appealed.
In these actions the plaintiff occupied a strategic position. After establishing his prima facie case, it remained only for him to stand by and watch, with some degree of satisfaction, the contest waged between these defendants. The more numerous the charges of negligence hurled against each other, the stronger grew plaintiff's case. The verdict of the jury was a natural consequence.
We will first consider the appeal of Johnson Morrison. It is contended that Frank Peters was a bare licensee while riding on the autotruck of these defendants and, therefore, that they owed him only the duty not to wilfully or wantonly injure him. We are of the opinion that he was an invitee. The evidence established without contradiction that the boy was on the autotruck with the knowledge and consent of the driver. For about two weeks prior to the accident the boy, at odd times, had worked about the grocery store helping the clerks to fill orders for customers and, on several occasions, had gone on the truck to help make deliveries. In view of the legal status of the boy, defendants were obliged to exercise due care to avoid injuring him. The facts in this case are analogous to those in Rook v. Schultz, 100 Or. 482 ( 198 P. 234), wherein a boy of about the same age volunteered to assist in the delivery of milk and was injured while riding on the running-board of the autotruck. It was there held that the law applicable to an invitee was controlling.
There is no merit in the claim that the complaint in the cause of the guardian fails to state a cause of action. It is insisted that it should have been brought by the minor through his guardian and not by the father as the guardian for the minor. This contention is answered adversely to appellants by Section 34, Or. L., wherein it is provided that a guardian "may maintain an action as plaintiff * * for the injury or death of his ward." We need not inquire as to what may be the authorities in other jurisdictions. Furthermore, if the guardian did not have the capacity to bring this action, such appeared on the face of the complaint and, unless a demurrer was made thereto pointing out the specific objection, the point now urged is deemed to have been waived. A general demurrer will not suffice.
Relative to the complaint it is also argued that it appears from the face thereof, (1) that the backing of the Dodge autotruck "merely created a condition for the accident to happen, which would not have resulted in injuries to the Peters boy except for the subsequent negligence of appellants Columbia Soda Works"; (2) "That the Peters boy came to his injuries on account of appellants Columbia Soda Works driving their truck into our truck, while looking in an opposite direction from which they were driving"; and (3) "That our negligence, if any, had come to a complete end, and that appellants Columbia Soda Works had the last opportunity of avoiding injuries to the Peters boy." We are unable, as a matter of law, to agree with these conclusions. Such questions were for the determination of the jury. Both trucks were moving at time of collision. The flow of negligence, if plaintiff's testimony is to be believed, was unchecked by any intervening or independent cause.
An examination of the complaint discloses that, after plaintiff had made specific charges of negligence against each defendant, it was then alleged, "That by reason of said collision and by reason of the negligence and acts of said defendants as above set forth in operating and driving their said respective trucks and thus throwing and pitching the said Frank Peters to the hard pavement, the said Frank Peters was severely injured) * *." The meaning of the pleader is clear. Failure to use such words as "concurrent" or "simultaneous" in referring to the negligence of the defendants pertains to form rather than substance.
Appellants are not entitled to a directed verdict. Assuming that the Peters boy informed the driver that the right of way to the rear was clear and that the driver also looked before starting the truck, he was not relieved of the duty to exercise due care while the vehicle was in motion. It is conceded that he gave no signal, as required by Section 4772 (subdivision 10), Or. L., to make known his intention to back the truck. His failure to comply with the statute in this respect constitutes negligence per se: Marshall v. Olson, 102 Or. 502 ( 202 P. 736); Emmons v. Southern Pac. Co., 97 Or. 263 ( 191 P. 333); Northwest Door Co. v. Lewis Inv. Co., 92 Or. 186 ( 180 P. 495). It is also conceded that, after starting to back, the driver did not look to the rear before the collision occurred. It seems that he depended upon a thirteen year old boy to look for him. His statutory duty to keep a lookout for oncoming traffic cannot thus be delegated.
Whether the driver of the Ford truck could have avoided the collision by the exercise of due care was a question of fact for the jury to determine. Assuming that the Ford truck driver was negligent in this respect, it did not relieve Johnson Morrison from liability unless such negligence was the sole proximate cause of the accident. Plaintiff need not be concerned as to which of the defendants was the more negligent. His case against both is made if it be established that their combined and concurrent negligence produced a single and indivisible injury. It is immaterial that one of the defendants may have been far more negligent than the other: Carlton v. Boudar, 118 Va. 521 ( 88 S.E. 174, 4 A.L.R. 1480); Burd v. Bleischer, 208 App. Div. 499 ( 203 N.Y. Supp. 754); Huddy on Automobiles (8 ed.), § 469; Berry on Automobiles (5 ed.), § 227.
Appellants also complain of the failure of the court to give certain requested instructions. On examination of the entire charge of the court we find that the issues and the law applicable thereto were clearly and accurately stated. All of the instructions to which the defendants were entitled were covered in language that the jury might well understand. Most of the requested instructions were predicated on the theory that the Peters boy was a mere licensee. There was no evidence from which such inference could reasonably be drawn. This was, indeed, a difficult case from the standpoint of the trial judge, but it was submitted to the jury in a most able manner. We think appellants have no cause to complain as to the instructions of the court.
The contention that the Peters boy was guilty of contributory negligence, as a matter of law, is wholly untenable and we think warrants no discussion.
We next consider the appeal of defendants, Columbia Soda Works:
It is urged that it was improper to join these defendants with Johnson Morrison since, in the operation of their respective trucks, they acted independently of each other and without common purpose or design. Conceding this to be true, so far as the operation of the vehicles is concerned, it does not follow that the defendants are not joint tort-feasors. If their concurrent negligence produced the result of which complaint is made, either or both of the defendants may be held liable: Strauhal v. Asiatic S.S. Co., 48 Or. 100 ( 85 P. 230). In support of this conclusion also see authorities above cited relative to concurrent negligence.
The court was requested to give the following instruction:
"You are instructed that one using the highways is entitled to assume that other persons using such highways will obey the laws of the state and act with reasonable diligence and prudence, so defendant Niilo Erickson had a right to assume that other persons using Commercial Street at and just prior to the time of the accident would conduct themselves with reasonable prudence and diligence and not cause an automobile to be backed or turned across the street into the automobile which Erickson was driving without giving any warning."
This instruction was given by the court with the following modification:
"The same would also be true with reference to Johnson in driving his truck and he would have a right to assume that any other person traveling the street at that time would also observe the law and conduct himself in a prudent and careful manner."
The requested instruction was sound, but we see no error in applying the same rule of law to appellants Johnson Morrison. Indeed, the plaintiff had the right to have this rule applied to both defendants.
Error is also assigned on the giving of the following instruction:
"If you find from the evidence that the defendant, C.E. Johnson, was backing his truck toward the north on Commercial Street with the intention of turning to the west, and at that time, the defendant, Erickson, was driving his truck to the east on the same street with the intention of passing Johnson's truck, but as Erickson approached Johnson, Johnson ran his truck in front of Erickson's truck without signalling his intentions, Erickson would not have a right to deliberately and ruthlessly run into Johnson's truck, but it would be his duty to use every reasonable means and care to avoid the collision, and if necessary and possible, to stop his car before colliding."
Objection is particularly made to that portion thereof which we have italicized. There was no contention in this case that the Ford truck was deliberately or wantonly driven so as to cause a collision with the Dodge truck. What the court had in mind in this instruction — which, no doubt, was clearly understood by the jury — was that Erickson, who drove the Ford truck, did not have the right to violate the law, even though it be found that the driver of the Dodge truck did not comply with the statute in respect to giving a signal. The charge of the court, considered in its entirety, convinces us that the jury was not misled in this respect.
Finally, it is urged that the court erred in giving the following instruction:
"I instruct you that inasmuch as there has been no allegation of negligence against the defendants, Johnson Morrison, from their failure to have their automobile equipped with proper rear-view mirror, you are not entitled to take into consideration the fact, if it is a fact, that such a mirror was broken or otherwise defective; in other words, the plaintiff could only recover for the acts of negligence which are alleged in the complaint and that was not alleged as one of the acts of negligence."
There was no issue in the pleadings concerning the failure of Johnson Morrison to have their autotruck equipped with proper rear-view mirror and no error was committed in so instructing the jury.
We see no error that would justify a reversal as to either of the defendants. It follows that both judgments are affirmed.
AFFIRMED.
RAND, C.J., and BEAN and BROWN, JJ., concur.