166 P. 531 | Or. | 1917
delivered the opinion of the court.
The assignments of error most insisted upon are based on the denial of defendants’ motions for a non-suit and for a directed verdict. It is contended that there is no evidence that Chance was in the employ of defendants, that they exercised any control over him or that he was engaged in any undertaking in which the defendants were interested at the time when plaintiff was injured. The evidence is to the effect that defendants rent from the Wemme Estate a two-story building on Broadway in the city of Portland extending from Burnside to Couch Street. Chance applied to the defendants in July, 1915, to rent a portion of this building for the sale of used autos, and for other purposes. The evidence is fairly clear
It appears by the testimony of defendant Keats that he instructed Chance that the cars intrusted to him were not to be used for pleasure, but only for business purposes. This witness testifies that the business in view was the sale of the cars and that a demonstration of the car is usually “a part of the sale.” Mr. Keats testified on this subject as follows:
“Q. Suppose you had seen him out with your car on a pleasure trip alone, and you would have known that*129 it had been a pleasure trip; you would have protested, wouldn’t yon?
“A. Yes.
“Q. And perhaps yon would have canceled the alleged contract between yon?
“A. I certainly would have called him on the carpet for it, and I would have a right to cancel it.”
Chance testifies that on July 31, Mr.' Harris, sales manager for the defendants, brought a prospective purchaser of an automobile to Chance; that Chance took him for a short ride for demonstration purposes on the evening of that day and was engaged in a further demonstration of the car to this same prospective purchaser at the time of the accident. Mr. Harris takes issue with the above testimony.
It clearly appears that the sale of used or secondhand autos is a part of defendants’ business. It is expressly conceded that the car which ran down plaintiff was the property of' defendants.
“When the plaintiff has suffered injury from the negligent management of a vehicle, such as a boat, car or carriage, it is sufficient prima facie evidence that the negligence was imputable to the defendant, to show that he was the owner of the thing, without proving affirmatively that the person in charge was the defendant’s servant. It lies with the defendant to show that the person in charge was not his servant, leaving him to show, if he can, that the property was not under his control at the time, and that the accident was occasioned by the fault of a stranger, an independent con*130 tractor, or other person, for whose negligence the owner would not be answerable.”
The rule is supported by the following cases: Norris v. Kohler, 41 N. Y. 42, 44, 45; Ferris v. Sterling, 214 N. Y. 249 (108 N. E. 406, 407, Ann. Cas. 1916D, 1161); Doherty y. Lord, 8 Misc. 227 (28 N. Y. Supp. 720, 723, 59 N. Y. St. Rep. 445); Edgeworth v. Wood, 58 N. J. L. 463 (33 Atl. 940, 942); O’Malley v. Heman Const. Co., 255 Mo. 386 (164 S. W. 565, 566); Fleishman v. Polar Wave Ice etc. Co., 148 Mo. App. 117 (127 S. W. 660, 662-665); Wiedeman v. St. Louis Taxicab Co., 182 Mo. App. 523-530 (165 S. W. 1105, 1106); Howell v. Mandelbaum, 160 Iowa, 119 (140 N. W. 397, 399, Ann. Cas. 1915D, 349); Langworthy v. Owens, 116 Minn. 342 (133 N. W. 866, 867); Knust v. Bullock, 59 Wash. 141, 143 (109 Pac. 329); Kneff v. Sanford, 63 Wash. 503, 505 (115 Pac. 1040, 2 N. C. C. A. 422); Burger v. Taxicab Motor Co., 66 Wash. 676, 678 (120 Pac. 519); Purdy v. Sherman, 74 Wash. 309, 310 (133 Pac. 440).
If we were to hold that in a clear case the court ■ would be justified in instructing the jury that the
“If you find from the evidence that the defendants did select this man Chance, who was driving the automobile at the time of the accident, and you further find that the defendants had the power to discharge him and had the right to direct what work should be done and the way it was to be done, then you are in.structed that the said Chance was the defendants’ servant at the time of the accident.
“If you find from the evidence that Chance, at the time of the accident, was defendants’ servant, and you further find that Chance was demonstrating the automobile for a prospective purchaser, and that the same was done for the benefit of and in furtherance of defendants’ business, then you are instructed that defendants are responsible for the acts of said Chance.”
We think that these instructions correctly state the law and that they are warranted by the testimony. The right of defendants to control Chance is inferable
“If you find from the evidence in this case that the defendants turned over and delivered to A. J. Chance the automobile in question in this case, under the contract with Chance, whereby Chance was to sell the automobile and pay the defendants a certain fixed price, and that he was to have all that he received over and above this price for his compensation and commission in making the sale, and that Chance, while out operating said automobile and demonstrating it to a contemplated purchaser, negligently and carelessly ran into and injured the plaintiff in this case, then I instruct you that the defendants would not be liable for such negligence and your verdict must be for the defendants.”
“If you find from the evidence in this case that the defendants made an agreement with A. J. Chance wherein and whereby they were to turn over to Chance certain second-hand automobiles, and that after they turned over these second-hand automobiles to Chance that the defendants had no further control or direction over said automobiles; and if you further find that at the time of the accident complained of in the complaint that A. J. Chance was driving one of these second-hand automobiles belonging to the defendants, and that the said defendants had nothing to do with the automobile at the time, and that at the time Chance was demonstrating said automobile he was doing so exclusively in his own business, then and in that event you are instructed that the plaintiff cannot recover in this action, and your verdict should be for the defendants.”
This instruction substantially covered the point to which the defendants’ request was directed. This forecloses any contention of error in denying the request: Domurat v. Oregon-Washington Railway & Navigation Co., 66 Or. 135, 138 (134 Pac. 313). The