BRUNO v. WELLS

In this action the plaintiffs, one the driver and the other a passenger, seek to recover for injuries received when the vehicle they were riding in collided with the defendant's automobile. The defendant at the time and place had backed her car out of a driveway into the street and intended to make a left turn. She had successfully backed the car into the street and was making a slow turn when the plaintiffs' car approaching from the right struck her car. Evidence reviewed. Held: That although the defendant was in a dangerous position in the road, yet the plaintiff driver at time was so far down the road that the defendant had the right to assume that she had sufficient time to make the turn in safety. That the plaintiff McKinnon, driver of the car, was clearly negligent and therefore cannot recover. It is a fair inference from the testimony that the driver was the servant and agent of the plaintiff passenger (owner of the car) and was driving the car in the course of his employment. There was at least a joint enterprise and in such a situation the driver's negligence bars the owner from recovering. Judgment for the defendant.

ELLS, J.

Humphrey Street is feet wide, from curb to curb. Mrs. Wells had backed her car out of a driveway on the north and had stopped it when its rear wheels were fifteen feet from the south curb. Intending to turn to the left toward Whitney Avenue, she looked to the left and to the right, and seeing no car approaching, was in the midst of making a slow turn when the plaintiff's car, coming up very fast from the rear, tried to squeeze in between her car and the curb, and a car parked at the curb just ahead, and came in slight contact with plaintiff's car. The damage to the cars was negligible, and the injury if any to the plaintiff driver and passenger inconsequential.

Clearly the driver, the plaintiff McKinnon, cannot recover, for he was grossly negligent. He saw or should have seen the situation Mrs. Wells was in, but took a chance. It was an especially reckless gamble because of his high rate of speed.

Bruno, the passenger, must prove Mrs. Wells was negligent, and that it was a substantial factor in producing the injury. Did she fail to keep a reasonable lookout for the oncoming car? She was in a dangerous position, athwart the road, and owed a degree of care proportioned to the danger. The inquiry is whether in the exercise of reasonable care she ought to have seen the oncoming car, and to have remained stationary until it had passed in safety in front of her. It was traveling at least forty miles an hour or sixty feet a second. It was therefore so far down the road that had she seen it she would have been entitled to assume, in the exercise of reasonable care, that she had plenty of time to make her turn in safety. If this conclusion is sound, it relieves her from the duty of looking constantly to the right while making the turn.

The issue is a close one, but I conclude the plaintiff Bruno has failed to prove this element of his case. Had he done so, I might still be forced to the conclusion that his driver's conduct was the sole proximate cause of the injury. And again, if he prevailed, a top figure for his judgment would be $100.

There is an additional feature of interest. Bruno says he was the owner of the car. It is a fair inference from the testimony that the driver, McKinnon, was his servant and agent and was driving the car in the course of his employment, with the owner, Bruno, sitting on the front seat beside him, or at least that there was a joint enterprise. In such a situation the driver's negligence will bar the owner from recovery.