60 A.2d 168 | Conn. | 1948
Lead Opinion
This is an action for damages brought against a common carrier, by passengers of his taxicab, for personal injuries arising out of a collision between the cab and another car. The defendant has appealed from a judgment for the plaintiffs, assigning error in the denial of a motion to set aside the verdict and in the finding and charge.
From the evidence most favorable to the plaintiffs, the jury could have found the following facts: The collision occurred on the night of December 20, 1942, on Main Street in Willimantic, a heavily traveled highway which runs substantially east and west and *642 is a part of route 6 to Providence, Rhode Island. Main Street was icy and slippery, with snowbanks two or three feet wide on either side adjacent to the curb, and the temperature was well below zero. Shortly before midnight, the plaintiffs ordered a taxicab of the defendant to transport them from their residence to their place of employment. Francis Ryan also had telephoned for a taxicab, and George Freeman, the defendant's employee, drove his cab to Ryan's residence, picked him up, and then drove to the Cadwell house, where the plaintiff Ella Cadwell, her husband, the plaintiff Aldea Flynn and another passenger were taken into the cab. When Freeman arrived at Ryan's house, Ryan told him that he had ordered the cab for the purpose of pushing his car, which had stalled because of the low temperature. Freeman agreed to do this, but the plaintiffs did not know of the project. En route to the plaintiffs' place of employment, Freeman stopped the cab and then pushed Ryan's car with it for several hundred feet on Main Street. He then gave the car a sharp push so that Ryan might steer it into a filling station lot. Ryan was unsuccessful in this, Freeman backed the taxicab, and Ryan's car was maneuvered back onto the highway so that both vehicles were parallel to and about six feet from the curb and about three feet from the snowbank beside the curb, with the taxicab behind the Ryan car. Freeman got ready to push the Ryan car again with the taxicab when Henry Tetreault, driving a Cadillac car, approached from the rear at a rate of speed of ten to fifteen miles an hour. Tetreault saw the taxicab at a standstill but could not see the car ahead of it. He turned out to pass and then saw the Ryan car and that both cars were starting to move. At the same time he saw another car approaching from the *643 opposite direction, knew he could not get by the taxicab and Ryan's car in time to avoid collision, and "slammed on" his brakes. The front end of his car "slid over" and struck the rear mudguard of the taxi, causing the plaintiffs' injuries.
The defendant claims that the verdict should have been set aside for several reasons. He contends in the first place that the complaint alleges that the negligence of Freeman was in stopping the taxi at the point of collision, that it did not allege that the cars were in motion and that the plaintiffs cannot recover upon the theory that the taxicab and Ryan's car were in motion at the time of collision. The allegation in the complaint is that Freeman was negligent in stopping to push the Ryan car. It was broad enough to cover the point in question. Huber v. Douglas, Inc.,
The defendant claims that the collision was caused solely by Tetreault's negligence and that Freeman's conduct was neither negligent nor a proximate cause of the collision. The defendant was a common carrier and as such was required to use the highest degree of care and skill which reasonably may be expected of intelligent and prudent persons engaged in such a business, in view of the instrumentalities employed and the dangers naturally to be apprehended. Peck v. Fanion,
The defendant's attack on the charge is premised by one on the finding by which we test it. Mavrides v. Lyon,
The attack on the charge, as pursued in the defendant's brief, in substance is that, contrary to his requests, the trial court failed to point out to the jury that it was proper on the evidence for them to find that Freeman had temporarily suspended his activities as a servant of the defendant and was engaged in doing a favor for Ryan in pushing his car. The defendant's claims of proof relative to this situation were that when Ryan telephoned for the cab he did not disclose his purpose of using it to push his car; that when Freeman arrived with the cab at Ryan's house Ryan disclosed this purpose and Freeman at first protested that he was forbidden to use the cab for that purpose but later agreed to, and did; that the defendant had instructed Freeman not to use any taxi to push or tow another vehicle; and that Freeman was acting outside the scope of his authority in doing so. The defendant assigns error in the charge dealing with the question whether Freeman, in pushing Ryan's car, had departed from the scope of his employment, and particularly in a portion of the charge in which the court said: "Whether an employee or servant is acting within the scope of his authority where, as here, there is no question of substantial deviation from his proper *646 route but only a question of disobedience in doing something forbidden by the employer in addition to, but not in substitution for, his regular duties, and while pursuing his regular duties, depends upon whether the servant is still primarily engaged in carrying out the duties for which he was hired, or whether he is primarily engaged in his own purpose."
The defendant's contention is that the court deprived the jury of the opportunity of finding that Freeman had temporarily suspended his activities as an employee of the defendant in order to do a favor to Ryan. The charge, if anything, was too favorable to the defendant. A common carrier is bound to exercise a high degree of care toward those who have put themselves under his care as passengers. His special duty begins when, in the act of entering his vehicle, the actual relation of passengers to carrier is assumed. Vaughn v. Healy,
Freeman was at all times engaged in taking the plaintiffs to their agreed destination, although he paused on the way to try to assist Ryan. The trial court might have charged as a matter of law that he was acting within the scope of his employment. Shiembob v. Ringling,
The rules we have stated apply to taxicabs except in unusual cases. See Carlton v. Boudar,
There is no error.
In this opinion MALTBIE, C. J., BROWN and ELLS, Js., concurred.
Dissenting Opinion
Even if negligence and agency are assumed, I am unable to see how the conduct of Freeman can be said to have been a substantial factor in causing the plaintiffs' injuries. Both Freeman and Ryan had a right to be where they were. It is true that if Freeman had not been pushing Ryan he might not have been there, but, as was said in Smithwick v. Hall Upson Co.,