On the evening of May 2,'1910, about five o’clock, the plaintiff, while crossing Ninth street on the west side of Broadway street in the city of St. Paul, was struck, thrown down, and injured by a carriage drawn by two horses, then being driven westerly on Ninth, street, by the alleged negligence of the driver.
The plaintiff, claiming that the team and carriage belonged to the defendant, and was being, with his аuthority, driven by a man named Rogers, who died before the trial, whose negligence caused her injuries, brought this action in the district court of the county of Ramsey to recover damages therefor. The answer to the complaint was, except as to formal allegations thereof, a general denial. When the plaintiff rested her case, the defendant also rested, and moved the court for a directed verdict in his favor. The motion was granted, and the jury, by the direction of the court, returned a verdict for the defendant, and the plaintiff appealed from an order denying her motion for a new trial.
The pivotal question presented by the record is whether the evidence, taking the most favorable view of it for the plaintiff permissible, taken in connéetion with certain other evidence оffered by the plaintiff, but erroneously excluded by the court, as we hold, was sufficient to take the question of the defеndant’s alleged negligence to the jury. A careful consideration of the evidence received and that erroneously excluded has led us to the conclusion that the question must be answered in the affirmative, and that the plаintiff is entitled to a new trial. In view of this conclusion, we shall refrain
There was evidence fairly tending to show that the plаintiff was injured at the time and place stated by being thrown down by a team and carriage belonging to some one, thаt it was driven by Rogers, and that he was negligent in the management of the team, which resulted in plaintiff’s injury. The evidence was not conclusive as a matter of law that the plaintiff’s injuries were the result of an unavoidable accident, or of her own negligence, as defendant here claims. But whether the team and carriage belonged to the defendant, and whether, if they did, Rogers was driving them by the authority of the defendant, were made by the evidence actually reсeived by the court close and controlling questions. The plaintiff’s evidence in reference to these questions was largely circumstantial.' The defendant owned and operated a livery business under the name of “Union Livery,” and оn the day of the accident there were sent from the Union Livery four carriages for use at a funeral, and eight from the Schroeder Livery, another livery establishment, making twelve carriages for the same funeral. There was evidеnce tending to show that the accident happened when the carriages were returning from the funeral; that none of the carriages from the Schroeder Livery was driven by Rogers; that at the time of the accident the pеrson who came to the plaintiff’s assistance inquired from the occupants of the carriage from whom they еngaged the carriage and in response thereto one of them handed to him a business card of the defendant from a pocket in the carriage, and several other cards of the defendant, all alike, were takеn from the pocket of the carriage; that it was the custom of the defendant to keep such cards in his carriage; and, further, that it was the custom of liverymen to keep their business cards in their carriages, but not in the carriagеs of their competitors.
The cards taken from the carriage in question were identified on the trial, and were оffered in evidence, but were excluded on defendant’s objection. The testimony of a witness tending to show that the hоrses attached to the carriage were from the Union Livery was stricken out.
If the jury found that the horses and carriage belonged to the defendant and were driven by Rogers, there would be no presumption of fact that he was acting without authority in the premises or beyond the scope of his employment. The presumption would be tо the contrary, and the ease would fall within the rule that, where a. person is driving a team of another in a public strеet, there is a reasonable presumption that he is doing so as the agent of the owner, but he may show that the contrary is the fact. Geiselman v. Schmidt,
The correctness of this rule is not controverted by the respondent ; but he cоntends that the evidence is conclusive that Rogers was not driving the team as the agent of the defendant, and such wаs the opinion of the trial court, hence the rulings of the trial court as to the admission of evidence were in nо event reversible error, and that the court correctly instructed a verdict for the defendant. There was direсt evidence tending to establish the claim that Rogers was not the agent; but upon a consideration of the wholе evidence we are of the opinion that it was not conclusive as a matter of law, and that the cause should have been submitted to the jury.
Order reversed, and a new trial granted.
[Note] Who is responsible for acts of driver furnished with a hired vehicle, see notes in 13 L.R.A.(N.S.) 1122; 25 L.R.A. (N,S.) 33.