Campagna v. Market Street Railway Co.

EDMONDS, J.

Salvadore Campagna, Jr., was riding on a vegetable truck, driven by his father, when it struck a streetcar. As a result of the collision, the son sustained personal injuries. In the trial of his action for damages, the jury returned a verdict in favor of the railroad company and his appeal from the judgment principally concerns an instruction relating to the doctrine of imputed negligence.

For some years prior to the accident, the elder Campagna had been in the produce business, selling fruit and vegetables from door to door. The son, a young man 25 years old, described in the testimony as being mentally deficient, customarily accompanied him. According to one defense relied upon by the railroad company they were joint venturers engaged in a common enterprise.

At the time of the accident, which occurred at about 5 :30 in the morning, father and son were on their way to the market. Although the testimony as to the collision is conflicting, there is substantial evidence, the appellant admits, tending to prove that his father, in operating the truck, was guilty of negligence. But the conduct of the father would only absolve the railroad from liability if his negligence may be imputed to the son.

There is no dispute regarding the facts as to the business relations of the father and son. Campagna, Sr., testified that for approximately ten years the boy had been his companion everyday. He helps me lots, ’’ the father told the jury. “In going to the market he help to load the truck, and after, on the route, he deliver the stuff, fruit, vegetables, and anything for my customers....” Also, the father continued, the boy would “collect the money sometimes, when he has the right change.” When they came home after a day’s work, the son would help ‘ ‘ clean up the truck; take all the boxes out of the truck. ...”

The young man lived with his parents, and as a member of the household he did chores such as cutting wood and carrying it upstairs, starting the fire and cleaning. Regarding the earnings from the truck, the father was asked on cross-examination: “Whatever you earned together went into the family

[307]

pool, didn’t it?” Answering affirmatively, the witness added: “Well, the boy is work more voluntary.” He paid his son no salary, the father told the jury, although once in a while, when he could spare the money, he gave him a few dollars.