87 A. 743 | Conn. | 1913
The jury might reasonably have found these facts: The plaintiff was engaged in the service of the defendant as a domestic servant, and as a part of the contract of employment the defendant contracted to take the plaintiff to church each Sunday in his automobile. The defendant's chauffeur, McAuliffe, was, at the time of the accident, taking the plaintiff to church in pursuance of the defendant's contract. He started late for church. At the time of the accident the car was traveling at a rapid speed of thirty miles an hour. The car was in good condition. It had descended a hill, and was at the foot where the road was substantially straight and level, and of macadam, in fairly good condition, when suddenly it left the highway and landed against some trees outside the highway, the car being at an angle of forty-five degrees with the highway. As a consequence the car was badly damaged, and the plaintiff suffered the injuries complained of. A reasonably competent chauffeur, in the exercise of due care, *356 ought to be able to keep a passenger automobile, which was in good condition, in the traveled way of an unobstructed highway, which was level and straight and in reasonably good condition. The cause of the automobile leaving the highway was due to the fact that the chauffeur took his hand from the steering-wheel for a moment in order to pull his cap over his eyes and prevent the rays of the sun being reflected from the brass lamps of the car into his eyes, and the speed of the car was then so great that it, not being under control for a brief space of time, plunged off the highway. As soon as the rays of the sun thus blinded the chauffeur, as the jury might reasonably have found, it was his duty to have stopped the car; had he done so the accident would have been avoided.
The only logical conclusion to be drawn from the facts proven was, that the cause of the accident was the driving of the car in a negligent manner.
The defendant claimed upon the trial that the injuries to the plaintiff, if any, were occasioned by the acts of a fellow-servant, and, as we understand the record, requested the court, upon this ground, to direct a verdict for the defendant.
The fellow-servant defense cannot prevail in this case, unless it appear from the evidence, first, that the plaintiff, Miss O'Bierne, was an employee of the defendant at the time of the accident; second, that the accident resulted from the negligence alleged of the chauffeur, McAuliffe; and third, that the relation of McAuliffe to Miss O'Bierne at that time was that of fellow-servant.Sullivan v. New York, N. H. H.R. Co.,
Let us next ascertain if Miss O'Bierne, at the time of the accident, was an employee of the defendant? She was his house servant, and in one sense continued in his employ during the period of employment, wherever she might be and whether upon her own or her master's business. Her church-going cannot be said to have been connected with that employment. It was no part of her duty as a servant to go to church. She was free to go or not, and to choose the church she would go to. She was under no obligation to ride in the car; she was performing no service for him in so doing. On the contrary, he was rendering her the service required by his contract. The defendant did not pay her to ride in his car; she paid the defendant for the ride. This was as much a part consideration for her services as the wages paid her. On the way to and from the church her time *358 was her own. She was traveling for her own purposes, and the right of the defendant to her services at this time was not "merely dormant, but wholly suspended." As she was not engaged in the defendant's work when she was injured, she was not a co-employee with McAuliffe.
There are numerous cases of railroad employees whose contracts of employment included transportation to and from work, and who, while so traveling, have been injured by the negligence of the employees operating the train. In the best reasoned of these opinions, and in the greater number, these employees have been held to have been passengers, and not engaged in a common employment with the negligent employee of the railroad. In McNulty v. Pennsylvania R. Co.,
The case of Pigeon v. Lane,
The two rulings on evidence complained of were correctly decided.
There is no error.
In this opinion the other judges concurred.