This case was brought by plaintiffs-appellants George and Margaret Dungan, husband and wife, against the Arizona Ice and Cold Storage Company, a corporation, and Philip Brandenberg, an iceman, hereinafter referred tо as the “company” and the “driver” respectively. Plaintiffs alleged that the driver was the servant of the company, and that he, while in the scope of his employment, did negligently operate an ice truck and did thereby cause the death of plaintiffs’ four-year old son, Jackie Dungan.
The facts as disclosed by the record show that on September 18, 1947, the driver made one of his regular deliveries of ice to the home of the plaintiffs. The driver parked the ice truck about thirty feet from the front of plaintiffs’ house in the yard abutting it. Having made the *49 delivery he emerged from the house, entered the truck and commenced to back it up. The driver’s testimony is conflicting as to just what obsеrvations he made relative to the whereabouts of the child before backing up the truck. When the truck had gone backwards about ten feet the driver heard his helper, one Fimbres who was then some distance away, hollеr, “Stop!” At the same instant he heard the child scream. The driver stopped the truck and retrieved the crushed body of the child which was lying in a prone position underneath the truck between the front and rear wheels. A short time therеafter the child died of his injuries.
The matter was tried before a jury. The trial court, at the close of plaintiffs’ case, directed a verdict in favor of the company on the ground that plaintiffs had failed to show that the driver was a servant of said company at the time of the accident. At the close of the whole case, the trial court granted a motion for a directed verdict in favor of the driver on the ground that plaintiffs had failed to prove the negligence on the part of the driver in the death of the child. Plaintiffs’ motion for a new trial was denied and they appeal from that order.
Plaintiffs’ first assignment of error is that the trial court erred in directing a verdict in favor of the company. Plaintiffs contend initially that the company was the owner of the ice truck in question and then relies on the cases of Baker v. Maseeh,
It must be further noted at this point that thе plaintiffs’ case does not necessarily hinge on the ownership of the truck. Even though the company was the owner of the truck it does not necessarily follow that the driver was its servant, and conversely, it is entirely possible thаt the driver may have been the servant of the company at the time of the accident even though he himself, and not the company, was the owner. While it is true that in that° event plaintiff would not have the benefit of the aforеmentioned presumption, still the question of master-servant relationship remains. Once again the evidence is in conflict. The driver’s name and the company’s telephone number appeared on the side of the truck. According to the contract between the driver and the company, the former could sell ice only in a territory defined and limited by the latter. The driver was under obligation to obtain all the ice that he sold from the company, and. to charge whatever retail prices the company should fix. The driver was also obliged to make whatever deliveries the company should direct to the Prima County Hospital which paid the company .and nоt the driver therefor. As opposed to this evidence the driver testified that he received no salary from the company, that they withdrew no withholding tax from his income, and that he carried social security on his employee, Mr. Fimbres. He also testified that he received no instructions from the company (other than as set out above) as to the manner in which he operated the truck, and that he incurred all expenses in such operation.
There is no necessity of setting out the definitions of and differences between the relationships of master-servant and independent contractor. Those lines have been clearly drawn in this jurisdiction as will be found by a review of the cases. It suffices to say that the evidence is in sharp conflict and that it is such that reasonable men could differ in their determination of it. Whether the driver was a servant of the company or an independent contractor was a question that should properly have been left for the jury to determine. The trial court erred in directing a verdict for the company in this regard.
Plaintiffs’ second assignment of error is that the trial court erred in granting a directed verdict in favor of the driver. Defendants’ counsel cite in their brief the case of Williams v. Cohn,
It is clear that the driver owed the deceased child a duty to protect him from being injured by the ice truck. The evidence discloses that the driver had been delivering ice to the plаintiffs for months; that he customarily parked his truck in the yard in front of plaintiffs’ house near two wooden “horses” on which plaintiffs’ children often played; that the driver was perfectly aware of the fact that little children were in the hаbit of playing in that area; and that he often gave small chunks of ice to the children playing about the yard. The driver admitted that immediately prior to taking the ice into the house, he saw the deceased child in the proximity of the parked truck. The evidence depicting the driver’s duty need not be further delineated.
It is equally as clear that the child’s death was proximately caused by the operation of the truck by the driver. The statement of counsel for the defendants in their brief, “ * * * that any evidence as to whether the truck absolutely struck the child or not was at most sheer speculation,” is utterly ridiculous. While backing up the truck the driver heard the child scream. Immediately thereafter the crushed body of the child was found lying in a prone position underneath the truck between its front and rear wheels. We do not think it conceivable that the child’s death was caused by any means other than being run over by the truсk.
It remains to be considered whether there was sufficient evidence that the driver breached his duty to the child. The test is whether the driver acted as a reasonable man would have acted in like or similar circumstances. Thеre is some conflict as to what the driver did after returning from the house to the truck, and the care he exercised before backing up the truck. The driver testified: “Q Just what did you do to determine whether there was anyone there or not? A When I came out of the house the truck was in position No. 2 on the diagram; come out on the northeast corner; glanced to the rear of the truck when I went around my truck, south side on the diagram. I walked to the rear.” And further: “Q Did you attempt to determine through that mirror whether any person or persons were near your car before you started it? A No, I looked to the rear.” And further: “Q Now, you said here a moment ago, and if I am in error you can tell me, that you went behind the truck to see if anybody was behind it? A I walked to the end of the truck, sir.” Referring to a deposition of the driver taken before the trial: “Q ‘Question: And you say that you went *52 behind the truck before you got in and drove back?’ And yоur answer was, ‘No, I looked back on both sides. I didn’t look inside the truck.’ Did you make that answer to that question? A Yes, sir.” From his own testimony it does not clearly appear exactly what the driver did on returning to the truck after delivering the icе. At the trial he said he walked to the back of the truck and in the deposition he said that he merely looked back on both sides of the truck.
In Collins v. Riverside Amusement Co.,
In reversing a verdict directed in favor of defendant in Keelеr v. Maricopa Tractor Co.,
And in Nichols v. City of Phoenix,
In reviewing the evidence in this case, employing the interpretatiоn as set out in the cases cited above, we hold that the question should have been submitted to the jury to determine whether or not the driver was negligent in operating the ice truck. The trial court therefore erred in directing a verdict in favor of the defendant driver.
Since the above discussion effects a complete disposition of this case on appeal, plaintiffs’ other assignments of error will not be considered.
The case is reversed and remanded for a new trial not inconsistent with this opinion.
Reversed and remanded.