
    Beierla et al. v. Hockenedel.
    
      Negligence — Passenger in crowded motor bus thrown throtigk open door — Questions for jury — Negligence, contributory negligence and whether open door proximate cause of injury — Violation of municipal ordinance relating to motor bus doors negligence per se — Charge to jury — Refusal of special requests not error — Request predicating recovery solely upon bus jolting and omitting open door — Requirement omitted that plaintiff’s negligence to bar recovery must be proximate cause — Defendants operating certificated motor bus line engaged in joint enterprise — Immaterial whether bus line operated as partnership or joint enterprise — Persons engaged in partnership are engaged in joint enterprise, when — Pleading—Failure to allege joint enterprise, disregarded — Section 11364, General Code.
    
    1. In passenger’s action for injuries, sustained when thrown from bus where passenger was compelled to stand with hand on back of driver’s seat because of crowded condition of bus, and was thrown through door of bus, left open in violation of ordinance, questions of negligence and contributory negligence held for jury.
    2. In passenger’s action for injuries sustained when thrown through door of bus, left open in violation of ordinance, whether open door was one of direct and proximate causes of injuries to passenger held for jury.
    3. Violation by bus driver of ordinance requiring all busses to be provided with suitable doors, which shall be kept closed while bus is in motion, would be negligence per se, in passenger’s action for injuries sustained when thrown through open door.
    
      i. In passenger’s action for injuries sustained when thrown through open door of bus while making turn, request to charge, omitting fact of open door, and implying that only negligence by defendants was from jolting of bus, was properly refused, since passenger, if not guilty of contributory negligence, could recover independent of any jolting or jarring of bus.
    5, In passenger’s action for injuries sustained when thrown through open door of bus, refusing requested charge omitting requirement that plaintiff’s negligence to bar recovery must be direct or proximate cause of injury, held not prejudicial error.
    6. Where defendants jointly applied for certificate to operate bus line and operated single bus' company under agreement whereby each provided own bus over designated routes and uniform time schedule and divided proceeds according to time busses were operated, defendants were engaged in prosecution of a joint enterprise.
    7. In passenger’s suit for injuries against defendants' operating bus company, it was immaterial whether defendants were operating as partnership or merely as joint enterprise, since in either event relation of agency existed between them, and each would be liable for negligence of other in carrying on undertaking.
    8. Persons engaged in partnership are engaged in joint enterprise, and finding that defendants' were partners necessarily embraces finding that they were engaged in joint enterprise.
    9. Petition by passenger for injuries charging defendants with operating bus company as partnership embraces lesser and more informal relation of joint enterprise, which relationship was shown by evidence, and defect, if any, in failing to allege joint enterprise is to be disregarded under Section 11364, General Code, ■ as not affecting substantial rights of adverse party.
    (Decided March 14, 1927.)
    Error: Court of Appeals for Lucas county.
    
      Messrs. Miller, Brady S Yager, and Mr. Charles P. Carroll, for plaintiffs in error.
    
      Messrs. Deeds & Cole, for defendant in error.
   Richards, J.

The action is one for personal injury, and was brought by Ida A. Hoekenedel against seven defendants alleged to be doing business in the transportation of passengers as a co-partnership under the name of the Toledo Motor-bus Company. The trial judge took the case from the jury as to three of the defendants, and the jury returned a verdict in favor of the plaintiff and against the remaining four defendants for $4,250, and judgment was rendered on the verdict.

The evidence discloses that Mrs. Hoekenedel was a passenger on March 25, 1925, on a bus operating in the city of Toledo. She entered the bus on Washington street near Seventeenth street with two lady companions. The bus was crowded, so that she was compelled to stand, and did in fact-stand near the driver’s seat, having her hand on the back of the seat occupied by him. The door of the bus, located on the right-hand side near the front, was purposely left open by the driver, and shortly after the bus started the driver turned to the left to enter Seventeenth street, crossing double tracks of the Community Traction Company. As the bus was swinging around to the left in the. act of making the turn, there was more or less jarring or jolting while crossing the tracks, and the plaintiff fell backward through the open door to the pavement below, and was very seriously injured. She contends that the bus was so crowded that she was not able to get any farther from the •loor than she did, and that she was clinging to the back of the driver’s seat, while the defendants claim that she did not have hold of anything to steady herself and that her own contributory negligence resulted directly in her injury. The questions of negligence and contributory negligence were submitted to the jury, and their verdict evidences the fact that they found both of those issues in favor of Mrs. Hockenedel, and such a finding is supported by sufficient evidence.

Much controversy seems to have arisen in the trial court as to what was the proximate cause of plaintiff’s injury, the plaintiff below contending that it directly resulted from excessive and unusual jolting and jarring of the bus as it crossed the tracks of the Community Traction Company, in connection with the fact that the bus door was left open in violation of the terms of a city ordinance, while the defendants contend that the open door was not in any sense the proximate cause of her injury. It is apparent from the evidence that the jury would be entirely justified in finding that one of the direct and proximate causes of the injuries resulting to plaintiff was the open door. An ordinance of the city, set forth in the petition and proved on the trial, requires that all busses shall be provided with suitable doors, which shall be kept closed while the bus is in motion, and a violation of this ordinance would be negligence per se. It is obvious that a mere jolt, whether ordinary or unusual, would not have caused the injuries resulting to plaintiff, if it had not been for the fact that the door of the bus was left open.

Some of the requests made by the defendants to charge the jury were refused, evidently on the ground, that they omit the fact of the open door and imply that the only negligence of the defendants from which liability could arise was the jolting of the bus. We do not think the mere matter of jolting or jarring is of vital importance in this case, for, if the plaintiff had fallen out of the bus through an open door while it was making a turn, and was not guilty of contributory negligence, she could have a right of recovery independent of any jolting or jarring of the bus. The refusal to give defendants’ request No. 7 does not constitute prejudicial error, for it omits the requirement that plaintiff’s negligence, in order to bar her action, would have to be a direct or proximate cause of her injury.

The petition charges the defendants with being partners engaged in motorbus transportation in the city of Toledo, and this partnership is denied by the answer. The evidence discloses that the seven defendants, acting together, applied to the Public Utilities Commission for a certificate to operate a bus line over certain streets in. the city of Toledo. A certificate was issued either in the names of these seven men or in the name of the Toledo Motorbus Company. The defendants had a written agreement among themselves, which one of them calls “a working agreement,” but it was not introduced in evidence. It does, however, appear that under the agreement each man was to own or provide a bus; that the busses were to operate over precisely the same route from the hours of 6 o’clock a. m. to midnight, and to provide transportation along the route every seven minutes. They received from the Public Utilities Commission only one certificate covering all of the seven busses, and bearing the same number, to-wit, No. 223, which number was painted on the outside of each bus. Passengers were required to pay a uniform fare of 5 cents into a locked box, and the total receipts from all the boxes were pooled among the defendants. Only one of them had a key to the various boxes, and he took daily therefrom the amount collected, and the proceeds were divided among the defendants according to the number of hours that the various busses had been operated during the day, so that each member received his proper share from the receipts from all passengers. Each member, however, was to furnish his own gasoline, and stand the expense of repairs on his own bus, and employ and pay his own driver. The bus on which the plaintiff was injured belonged to the defendant Beierla, and was being operated by a driver employed by him. All these facts appear by the testimony of the defendants themselves. Some controversy exists whether the agreement constituted a partnership, but no doubt can arise that the testimony of those defendants who took the stand shows they were engaged in the prosecution of a joint enterprise under a single certificate and authorization issued by the Public Utilities Commission.

In determining the matter of liability of the defendants other than Beierla, we do not regard it as important whether the relation existing between them was that of a partnership or merely a joint enterprise, for in either event the relation of agency existed among them, and each would be responsible for the negligent act of the other in carrying on the undertaking. The persons engaged in a partnership are engaged in a joint enterprise, and a finding by the jury that the defendants were partners would necessarily embrace a finding that they were engaged in a joint enterprise. While the petition charges the existence of a partnership, that would of course embrace the lesser and more informal relation existing among those merely prosecuting a joint enterprise.

Under the provisions of Section 11364, General Code, it is the duty of the court to disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party.

We have examined all the other claimed errors and find none to the prejudice of the plaintiff in error.

Judgment affirmed.

Williams and Lloyd, JJ., concur.  