Summary
In Ward v. Barringer, 123 Ohio St. 565, plaintiff was riding in defendant garage repairman's truck in order to point out plaintiff's previously disabled automobile.
Summary of this case from Allstate Ins. Co. v. CombsOpinion
No. 22567
Decided April 22, 1931.
Negligence — Respondeat superior inapplicabte — Owner riding to disabled automobile in garageman's service truck — Owner not master or guest of garageman — Recovery not precluded by passenger's knowledge of reckless or unlawful driving.
The plaintiff, his car having stalled upon a public highway, procured the services of a garage owner for its repair. For the purpose of pointing out the location of his car, plaintiff, while riding with the garage owner in his service truck, was injured by a collision of the truck with an automobile driven by another. There was a dense fog on this occasion. The owner of the service truck switched off his lights and drove in violation of law. This the plaintiff knew, making no objection, neither did he advise or counsel the driving without lights. Held:
1. The maxim respondeat superior does not apply, as the plaintiff was not the master of the garage owner; nor was the plaintiff a guest of the owner. His relation to the owner was contractual, and his riding in the latter's car was incidental to the carrying out of his contract of hire.
2. Knowledge by the passenger of reckless driving or violation of law by the truck owner does not ipso facto deprive him from recovery, if the passenger used the degree of care that ordinarily prudent men use under like or similar circumstances.
ERROR to the Court of Appeals of Crawford county.
Charles O. Barringer brought suit for personal injuries against George W. Ward and Edward C. Reeder, jointly, in the court of common pleas, and there secured a judgment against both. The Court of Appeals affirmed that judgment and the cause is here for review.
The petition alleges that while Barringer was riding in a Ford coupe owned and driven by Reeder in a southerly direction, the coupe collided with a Studebaker sedan owned by the defendant Ward, it being driven in a northerly direction by one of the servants of Ward. The gravamen of the action is based upon the negligent acts of the two defendants, it being alleged that each of them drove his car upon the wrong side of the road and across its center line. Reeder answered denying negligence upon his part, alleging that it was Ward who had driven upon the wrong side of the road. Ward also answered, denying negligence upon his part and alleging that it was Reeder and not he who drove over the center line. Barringer, Reeder and Ward were the only witnesses who were called and testified. Many of the facts are without dispute. About 10:30 p. m., on February 4, 1928, Barringer, driving southwardly from Bucyrus, had his car suddenly stop about six miles south of the city. He left his car at the right side of the road and returned to Bucyrus and procured the services of Reeder for its repair. Reeder was the owner of a garage in Bucyrus. Barringer, Reeder, and the latter's mechanic, drove back in Reeder's service truck to the place where the car had been stalled, Reeder driving and Barringer going with him to point out the location of the stalled car. They drove through a very dense fog. In order to better test the safer mode of traveling, whether with or without lights, Reeder switched his lights off and on, and because of the fog-reflection concluded that he could better see and drive with the lights off, and he then continued his driving in that manner. Barringer, who sat in the front seat with Reeder, knew that the lights were off, but did not interpose any objection. The brick road they were traveling on was sixteen feet in width, with a white cement curb on either side. Reeder was driving about thirty miles per hour when the accident happened. His car collided with Ward's car, which was being driven in a northerly direction by his servant. Barringer and Reeder both testified that Ward's car was also being driven without lights.
The whole case hinges upon the issues, (1) Whether the cars of Reeder and Ward, one or both, crossed over the center line of the road and thereby caused the collision, and (2) Whether under the circumstances Barringer was guilty of contributory negligence in permitting Reeder to drive his car on a foggy night without the statutory lights being displayed.
On the first issue Reeder's testimony supported the claim that his own car at the time of the accident was being driven on the right or proper side of the road. Ward's testimony tended to support the claim that his car, at the time of the accident, was on the proper side of the road. Barringer's testimony tended to prove that, while Ward's car was over the center line, Reeder's car swerved a trifle to the left and over the center of the line just before the collision occurred.
Mr. Charles Gallinger, Mr. W.J. Schwenck, Mr. B.B. Bridge and Mr. Marshall E. Wilcox, for plaintiff's in error.
Mr. O.W. Kennedy, Mr. J.D. Sears and Mr. S.A. Leuthold, for defendant in error.
The maxim, respondeat superior, does not apply here, for the relation of master and servant did not exist. Reeder was not the servant of Barringer. The latter had no control over Reeder in the operation of the truck, and Reeder so testified; nor could Barringer be considered as a mere guest of Reeder. Barringer's relation to Reeder was contractual and his riding as a passenger in Reeder's truck, for the purpose of pointing out the location of the stalled car, was incidental to the carrying out of his contract of hire entered into at Bucyrus. Reeder under the circumstances was required to exercise due care.
The question that has given the greatest concern to this court is: Was Barringer, by silently acquiescing and not objecting to Reeder's violation of the law in driving without the display of lights, guilty of contributory negligence as a matter of law? There is no evidence that Barringer counseled or advised Reeder to drive without lights, although each testified that he thought such was the safer method of travel. There is testimony tending to prove that just before the accident occurred Reeder swerved his car to the left, and crossed the center line of the road, and that Ward's car also crossed it. The proximate cause of the injury may have resulted from a combination of the two negligent acts of Reeder, one in driving without lights and the other in crossing the center line. If it be assumed, as claimed by counsel for plaintiffs in error, that plaintiff assumed the risk of driving without lights displayed, he did not assume the risk of Reeder's negligent act in driving over the center line of the road — an act which the jury may have found to have been chiefly the proximate cause of the accident. Mere knowledge by a passenger of reckless driving, or of violation of law by an automobile or taxi driver, does not, ipso facto, preclude him from recovery, if he used the degree of care that ordinarily prudent men would have used under like or similar circumstances; and that issue becomes a question for the jury. Dowd v. Atlas Taxicab Co., 187 Cal. 523, 202 P. 870; Bauer v. Tougaw, 128 Wn. 654, 224 P. 20; Bryden v. Priem, 190 Wis. 483, 209 N.W. 703.
Counsel for plaintiffs in error recognized this rule in their special requests, which were given by the court, wherein the court charged that "the plaintiff is responsible for any negligence on his part in failing to exercise ordinary care for his own safety, and it is for you to say from all the evidence whether the plaintiff before or at the time of the injury, was in the exercise of ordinary care for his own safety * * * and ordinary care is defined to be such care as persons of ordinary prudence exercise under like or similar circumstances for their own safety."
In their respective answers each defendant placed the blame upon the other, each claiming that the other defendant crossed the center line. In view of the fact that there was evidence tending to show that both of them were negligent in this respect, there remained only the issue of contributory negligence, and upon that issue the jury found in favor of the plaintiff.
Finding no prejudicial error in the record, the judgment of the Court of Appeals will be affirmed.
Judgment affirmed.
MATTHIAS, DAY, ALLEN, KINKADE and ROBINSON, JJ., concur.