227 Pa. 488 | Pa. | 1910
Opinion by
March 21, 1910:
In this action the plaintiff sought to recover damages for injuries received in a collision between a buggy in which he was riding and an automobile owned by the defendant, and operated by his chauffeur. The accident happened upon a dark night. Plaintiff was driving along the road, when he saw and heard the automobile approaching. He turned as far as possible to the right side of the road to let it pass, but, according to his testimony, the automobile came directly towards him, struck his buggy, and he either jumped or was thrown into the road, and severely injured. It was admitted that the automobile was owned by defendant and that the chauffeur was employed by him to care for and operate that particular vehicle. The trial judge submitted to the jury for their determination, as questions of fact, whether the accident was caused by the negligence of the chauffeur, whether the plaintiff was guilty of contributory negligence, and whether at the time of the accident the chauffeur was acting within the scope of his employment, and was upon his master’s business. Upon all these matters, the jury found in favor of the plaintiff..
The first and second assignments of error raise the question whether the court should not have taken the case from the jury and directed a verdict for defendant, or entered judgment non obstante veredicto in his favor.
Counsel for appellant maintain that at the time of the accident the chauffeur was not engaged in the master’s business, and was acting in disobedience of his orders. This claim is based upon evidence offered by the defendant, tending to show
“ Where a servant, who is employed for the special purpose of operating an automobile for the master, is found operating it in the usual manner such machines are operated, the presumption naturally arises that he is running the machine in the master’s service. If he is not so running it, this fact is peculiarly within the knowledge of the master, and the burden is on him to overthrow this presumption by evidence which the law presumes he is in possession of.”
In the case of Guinney v. Hand, 153 Pa. 404, it appeared that the plaintiff was injured by a beer wagon belonging to defendants, and in charge of a driver employed by them. Judgment on a verdict for plaintiff was affirmed, Chief Justice Sterrett saying (p. 410): “The question whether Carroll
In Simmons v. Penna. R. R. Co., 199 Pa. 232, we said (p. 238): “Since the scope of the servant’s employment is necessarily dependent on circumstances, a hard and fast rule cannot be laid down as to the scope of any particular employment; and it is ordinarily a question for the jury whether or not a particular act comes within the scope of a servant’s employment.”
In the case at bar, the defense depended entirely, upon the oral testimony of the defendant and his sister, as to the instructions given to the chauffeur, for the use of the automobile. Clearly the chauffeur was not out upon any errand of his own. He was directed to take the machine out by a member of defendant’s family, and he did so. Was it for him, under such circumstances, to dispute the right of a member of the family to order the machine out? Was he to presume that permission of the owner had not been obtained? The facts of this case distinguish it clearly from those in Lotz v. Hanlon, 217 Pa. 339. There the plaintiff simply showed that the defendant owned the machine; and rested. The defendant then called a witness, presumably the chauffeur, whose testimony was not contradicted in any maimer, and from which it appeared conclusively that the use of the machine by the driver on the evening when the accident occurred was wholly unlicensed, was for his own convenience and pleasure, and entirely apart from his master’s business. Under such circumstances, the owner was naturally held not liable for the conduct of the chauffeur.
So in Sarver v. Mitchell, 35 Pa. Superior Ct. 69, the plaintiff showed that the car was registered in the name of the defendant, and that the chauffeur had been seen driving his car before. The defendant then took the stand and admitted that the car belonged to him, and that the chauffeur was in his employ, and then the defendant testified that he had gone over to New York and had forbidden the chauffeur to take the machine out of the garage while he was away. The people who were in the machine at the time of the accident were the
But in the present case the facts were entirely different. It was shown that the automobile belonged to defendant, and at the time of the accident was being operated by his regular chauffeur, not upon any errand of his own, or to serve his own purposes, but in obedience to the order of a member of defendant’s family. That the occupants of the car were friends of defendant, and guests of his sister, and the errand upon which the car was taken was entirely proper and fitting in itself. Under such circumstances, the burden was upon the defendant to show that the chauffeur was not acting within the scope of his employment, and upon the business for which he was employed by his master. The test is, whether the act was done in the prosecution of the business in which the servant was employed to assist. If it was, the master is responsible. The fact that while acting for the master he may have disobeyed his commands, does not take the act out of the scope of his employment: McClung v. Dearborne, 134 Pa. 396. The present case as made out by the evidence of the plaintiff was sufficient to warrant a recovery. Whether or not it was overcome by the testimony offered by the defendant was for the determination of the jury.
The assignments of error are overruled, and the judgment is affirmed.