Ross v. Wilcox

PEEK, J.

Plaintiffs appeal from an adverse judgment in a personal injury action. The ease arose out of a collision between an automobile in which plaintiffs were riding as the guests of one Keyes and an automobile being operated by the defendant, Charles Edward Wilcox.

In addition to the defendant driver, C. E. Wilcox, plaintiffs’ complaint also named T. R. Wilcox as the owner of the car and the remaining defendants as the employers of the defendant driver. The complaint further alleged that C. E. Wilcox was driving with the consent of the owner and in the course and scope of his employment with the other defendants. Keyes, the driver of the car in which plaintiffs were riding as guests, was not named as a defendant. The answer denied generally all of the material allegations of the complaint and alleged contributory negligence as an affirmative defense.

The testimony concerning the actual collision was in sharp conflict. Plaintiffs do not question the sufficiency thereof to support a conclusion of negligence on the part of Keyes. Their sole contention on appeal is that the trial court erred in refusing to give certain instructions offered by them on the issues of imputed negligence and proximate cause. Counsel for defendant does not attack the correctness of the instructions offered. He does, however, question the propriety of the same under the circumstances. The instructions proposed by plaintiffs are as follows:

“The vehicle in which plaintiff, Cinderella Ross, was riding at the time of the accident in question was then being operated by Ward Keyes, and plaintiff was merely a guest.

“You are instructed that the driver’s negligence, if any, may not be imputed to the plaintiff, Cinderella Ross, and that, therefore, you should find that there was no contributory negligence on the part of the plaintiff.

[215]

“Adapted from 210-C B.A.J.I.”

“When the negligent acts or omissions of two or more persons, whether committed independently or in the course of jointly directed conduct, contribute concurrently and as proximate causes to the injury of another, each of such persons is liable.

“This is true regardless of the relative degree of the contribution. It is no defense of the defendant, Charles Edward Wilcox, that Ward Keyes, not joined as a defendant in this action, participated in causing the injury, even if it should appear to you that Ward Keyes was negligent, or even if it should appear to you that the negligence of Ward Keyes was greater in either its wrongful nature or effect.