A general demurrer to appellant’s second amended • complaint was sustained and consequent judgment of dismissal entered, on the theory the complaint did not state a cause of action because no negligence of the bus driver in making the transfer delineated in the complaint could proximately cause appellant’s injury; and lack of authority of the driver to bind his principal in the transaction narrated.
The salient allegations of the complaint, perforce admitted by the general demurrer, are:
' That September 10, 1953 appellant was a pay passenger in one of respondent Company’s buses which stopped because of a flat tire; the driver then and there acting within the scope of his apparent authority, being the agent, servant and employee of -respondent Transit Company, engaged Herbert Fell, Jr., to take appеllant to her destination; and pursuant to said arrangement — the exact terms of which were unknown to appellant — respondent Company’s driver, against appellant’s will and without her consent, transferred her to Fell’s automobile; that Fell negligently and carelessly drove and operated his аutomobile by driving it at an excessive rate of speed •and by failing to stop at the intersection of Ash Street and North Water Avenue in ■Idaho Falls, thus negligеntly collided with ‘an automobile belonging to Harry Kercher, likewise driven at an excessive rate of speed by Don Mecham, who also failed to stop; that as a direct result of such accident, appellant received severe and lasting injuries to her head and body, detailed in the сomplaint, for which she asked gen- ' eral and special damages; that respondent Company through its servant and agent, the driver, without authority or сonsent of appellant, took her from a place of safety in the bus and placed her in the Fell automobile and by its carelessness and negligence in transferring appellant from the bus to Fell’s automobile, Fell’s operation of his automobile, together with Mecham’s operаtion of Kercher’s automobile, all proximately caused appellant’s injuries.
The question of proximate cause under the above allegations was a question of fact and for determination by a jury under appropriate instructions, Stearns v. Graves,
Under the allegations of the complaint, respondent Tarr, Jr., d/b/a Idaho Falls Transit Company, operating a gen- . eral bus business in Idahо Falls, was a common carrier, 60 C.J.S., Motor Vehicles, § 5, page 114, and as such required to exercise the highest degree of care, skill and diligence in receiving appellant and conveying her to her destination and setting her down as safely as the means of conveyance and circumstаnces permit. 13 C.J.S., Carriers, § 677, page 1254.
Respondent Company, by accepting and receiving appellant as a paying passenger, undertоok to transport her under the above standard of care to her destination. 13 C. J.S., Carriers, § 640, page 1201; 10 Am.Jur. 24, § 950.
The allegation in the complaint that the Transit Company’s driver, in securing the services of Fell and transferring appellant, was acting within the apparent scope of his employment was suffiсient to charge the Company with responsibility therefor. Madill v. Spokane Cattle Loan Co.,
The demurrer thus admits respondent’s agent, acting within the apparent scope of his employment,, secured a substitute conveyance to fulfill respondent Company’s obligation to appellаnt as a paying passenger to convey her to her destination, and against her will and without her consent, placed appellant in this substitute cоnveyance and because of this transfer and the negligence of the driver of this substitute conveyance and the negligence of the driver of another automobile, she was injured.
The basis of respondent Transit Com- , pany’s obligation and liability stems from the contract of transportation which аrose when it accepted appellant as a pay passenger and which was to transport her carefully,. with appropriatе caution and circumspection and without negligence, to her downtown destination.
This obligation was continued when respondent Company’s emрloyee allegedly acting within the scope of his employment, because of the flat-tire-.and consequent interruption of the immediate-сontinuance of appellant’s - trip in respondent Company’s conveyance and hence delay, secured a substitute conveyanсe, and not only tendered appellant this substitute conveyance as a
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means .secured by respondent Company through its agent for the completion of her journey and fulfillment of respondent Corn; pany’s 'obligation, but against appellant’s will and without her consent, the respondent Company, through its agent, ejected her from respondent’s bus, itself initial negligence, wrongful ejection from a common carrier being actionable, Lindsаy v. Oregon, etc., R. Co.,
Respondent’s obligation to exercise the high degree of care required and liability for negligence continued because by the automobile driven by Fell, respondent Company was carrying out its contract of transportation, though by a convеyance not owned or operated by it, but for its purpose in completing arid executing its contract. Thus, the automobile was vicariously employed by it and, for the alleged negligent operation thereof, was as liable as for its own conveyance. Dunn v. Pennsylvania R. Co.,
There was no allegation of any injury because of delay and delay as such is not involved in the case.
Payne v. Simmons,
The only two cases cited by respondents approaching the question are: Paducah Traction Co. v. Weitlauf,
*256 The complaint stated a cause of action and the general demurrer should not have been sustained. The judgment of dismissal is, therefore, reversed and the cause remanded with instructions to overrule the general demurrer, reinstate the second amended complaint and proceed accordingly. Costs awarded to appellant.