I concur in the reasoning of, and in the conclusions reached by, Mr. Justice CHERRY in his opinion. I desire, however, to add the following:
Under the testimony in this record, the findings of the jury that Wunderlich, Jr., was negligent in not having headlights burning at the time of the accident, and in not sounding a warning of his approach as he turned west into Ramona avenue, and that such negligent acts were the proximate cause of the injury, are, in my judgment, conclusive upon this court. Likewise the finding of the jury on the issue of whether the injury was attributable to the negligence *Page 46 of the deceased child. The other or additional facts in issue, that determine the liability or nonliability of Wunderlich, Sr., are not in dispute. It is misdemeanor, under the statutes of this state and the ordinances of Salt Lake City, for any one under the age of 16 years to operate an automobile in the public highways.
It is conceded that Wunderlich, Jr., was within the prohibited age, and that the operation of an automobile on the public streets by him was a misdemeanor. Wunderlich, Sr., frankly stated that he knew the age of his son; that he sold the car to his son and other minors within the prohibited age; that he knew his son was intending to and was operating the car on the public highways of the state, and that he assisted in procuring the state license for the automobile, and also paid part of the accident insurance for the protection of the owners of the automobile in its operation. These facts are nowhere in the record disputed. In view of the findings of the jury as to the negligence of Wunderlich, Jr., and that such was the cause of the injury, and, further, that the injury was not the result of any negligence of the deceased child, and in view of the other undisputed facts, it follows as a matter of law that Wunderlich, Sr., was liable for the injury resulting from the accident.
Let it be conceded that the trial court's instruction No. 7 is erroneous. The instruction had to do with the facts under which Wunderlich, Sr., would be liable for the negligence of Wunderlich, Jr. The testimony of Wunderlich, Sr., is not disputed anywhere in the record. By reason of the findings of the jury and the undisputed testimony of Wunderlich, Sr., he became liable as a matter of law. I am therefore unable to see wherein or whereby this instruction can be held to be so prejudicial as to work a reversal of the judgment.
No complaint is made of the instructions of the court relating to the measure of damages. By reason of the testimony of Wunderlich, Sr., which is in no way disputed, there *Page 47 were but three issues of fact to be determined by the jury. First, whether Wunderlich, Jr., was negligent; if so, whether such negligence was the proximate cause of the injury. Second, whether the negligence of the deceased child, if any, was the cause of the injury. Third, the amount, if any, of the damages to which plaintiff was entitled. The instruction relied upon for a reversal of the case in no way related to either of these questions.
The rule that should control the liability of Wunderlich, Sr., under the facts appearing in this record, especially in view of the increased use of automobiles on the public highways, is clearly stated by the Supreme Court of Wisconsin in Hopkins v.Droppers, 184 Wis. 412, 198 N.W. at page 742, 36 A.L.R. 1156, as follows:
"From these averments it appears, among other things, that the defendant father bought and placed in the complete control of his son, whom he knew or ought to have known was an inexperienced driver, for his free use in a crowded city, a machine which, if carelessly managed, might cause serious injury to others, and that by so doing he knowingly countenanced and encouraged his minor son to violate a statute of the state, and that these acts and the negligence of the son were the proximate cause of the injury complained of. The general object of that statute has been already stated. The statute amounts to a legislative declaration that a minor under 16 years is unfit to drive motor machines on the public streets, unless accompanied by an adult, and a violation of the statute is negligent. When the father authorized this violation of law, he failed in that duty which every good citizen owes to the public. He failed to observe for the safety of other persons that degree of care which the circumstances justly demanded. Although the motorcycle was not in itself a dangerous instrumentality, it was a machine of such a nature that, when negligently driven, it might menace the safety of other persons. This is a well-known fact, and one which in the exercise of ordinary care the father could reasonably anticipate."
I am of the opinion that the judgment should be affirmed.