
    Argued June 7,
    reversed and remanded July 12, 1961
    SHEEHAN v. APLING
    363 P. 2d 575
    
      
      H. William Barlow, Salem, argued the cause and submitted briefs for appellant.
    
      G. 8. Emmons, Albany, argued the cause for respondent. On the briefs were Willis, Kyle & Emmons, Albany.
    Before McAllister, Chief Justice, and Kossman, Perry, Goodwin and Lusk, Justices.
   GOODWIN, J.

This is an action for damages for injuries sustained in a highway collision. The plaintiff, who was a passenger in his own truck, appeals from a judgment entered for the defendant-driver following a directed verdict.

Did the trial court err in taking the case from the jury? The plaintiff, Sheehan, contends that if there was evidence of negligence on his part, which he denies, there was a jury question. The defendant, Apling, contends that contributory negligence was proven as a matter of law and that the directed verdict was properly entered.

Apling, who was moving Ms household goods from Toledo, Washington, to Coos Bay, Oregon, asked his friend Sheehan for the nse of Sheehan’s 1942 Ford truck. Sheehan obliged by loaning Apling the truck and then agreed to accompany Apling on the trip to help unload the furniture. Sheehan drove to Coos Bay. He also drove the first part of the return trip. At the time of the accident, Apling was driving. The collision occurred about 6:30 a.m., September 1, 1957. The parties had been on the road about 22 hours. Sheehan was awake, alert, and watching the road. He complains that Apling was not. Visibility was good; the pavement was dry. There was some evidence that neither party had enough sleep prior to the accident. After unloading in Coos Bay, they had turned around and started north again. The parties had stopped long enough for one meal.

The truck in which the parties were riding collided with a passenger automobile proceeding south on old Highway 99 near Tangent, Oregon. The record offers little to show what caused the accident. There is enough circumstantial evidence to justify an inference that Apling went to sleep at the wheel, swerved over the center line and into the path of the southbound car. Sheehan swore he remembered the truck swerving over the center line. He could not swear that Apling went to sleep, but could give no other explanation for Apling’s behavior. Apling denied going to sleep and said he thought the southbound car crossed over the center line. All the other evidence in the record placed the northbound truck in the wrong lane. Sheehan sued both drivers, but has not appealed from the directed verdict in favor of the southbound driver.

On the facts set forth above, the jury should have been given the opportunity to consider Apling’s negligence and Sheehan’s contributory negligence in riding with Apling under the circumstances. There was also a question for the jury whether Sheehan negligently exercised whatever control he might have had at the time of the collision and whether such negligence, if any, was a causal factor thereof. See Johnson v. L. A. Seattle Mtr. Exp., Inc., 222 Or 377, 388, 352 P2d 1091, where we distinguished between actual contributory negligence on the part of an owner-passenger and imputed negligence arising out of an agency relationship. A note, 27 Brooklyn L Rev 167, comments on similar cases in other states.

Apling contends that the right of control as understood in the law of agency is decisive in his favor. Apling reasons thus: Sheehan as owner had the right to control the vehicle, and therefore to control the driver. Right to control created an agency relationship. Since a principal is responsible for the negligence of his agent, Sheehan is responsible for the accident. Since Sheehan is responsible (on principles of respondeat superior), he can not recover from his negligent agent. The non sequitur is obvious.

Whatever the rule may be if a third person sues Sheehan on these facts, respondeat superior does not affect Sheehan’s rights against Apling. Prauss v. Adamski, 195 Or 1, 12, 244 P2d 598. Control will not bar Sheehan unless it was negligently exercised. Restatement, 2 Agency 2d 273, $ 415. Sheehan’s negligence must be actual, not derivative. There was no direct evidence of actual negligence. The defendants rested their case entirely upon imputed negligence. If Sheehan was in fact free from contributory fault in the causation of the accident, as a jury could have found, then he was entitled to recover from Apling. Restatement, 2 Agency 2d 241, $402; 284, $422. As we said in Prauss v. Adamski, supra:

“ In certain relationships the negligence of one person is imputed to another in favor of third persons. But a wrongdoer cannot by a fiction of law attribute his wrongdoing to the victim. In the typical instances of imputed negligence, those of master and servant and principal and agent, the negligence of a servant or agent is not imputed to the master or principal so as to prevent recovery against the servant or agent for negligence injuring the person or property of the master or principal. * * *’ [Alderman v. Noble, 296 Mass 30, 4 NE2d 619, 620]
“Therefore, in the instant ease, the negligence of the defendant, if there was negligence on his part, cannot be imputed to the decedent so as to bar a recovery in this action. This, of course, is independent of the proposition that if a principal is actually directing or controlling the acts of the agent at the time the negligent act is committed, he cannot recover from the agent for such negligence, because, in such circumstances, the negligence is directly his own. In such cases, the doctrine of imputed negligence has no application whatever.” 195 Or at 12.

The. point Mr. Justice Tooze made in Prauss v. Adamski was that an owner-passenger could be barred by his own negligence in giving inadequate or erroneous directions, or otherwise improperly exercising control over a driver, but could not be barred merely by the incidents of ownership and right to control. Since imputed negligence has no application, there must be actual negligence. Evidence thereof, if contradicted, presents a jury question. In the case at bar there was enough circumstantial evidence to present a jury question on the score of the plaintiff’s negligence, but there was also evidence that the plaintiff was free from fault. In such a case, it is error to withdraw the question from the jury.

Apling has attempted to make the point that Sheehan was barred as a guest-passenger under ORS 30.110 if not barred by imputed negligence. Sheehan was riding with Apling to accommodate Apling. A guest-passenger is ordinarily one who accepts a ride for his own accommodation. Albrecht v. Safeway Stores, Inc., 159 Or 331, 337, 80 P2d 62. Sheehan was not a guest.

Reversed and remanded.  