157 Wis. 531 | Wis. | 1914
The respondent urges that the judgment of' the circuit court is correct (1) because the driver of the automobile was not negligent; (2) because the plaintiff was guilty of contributory negligence; and (3) because the relation of master and servant did not exist between the defendant and the driver of the automobile at the time of the accident, at least not to the extent that the rule of respondeat superior applies in the case.
1. The evidence offered in behalf of the defendant tended to show that the automobile was running very slowly at the time of the collision; that the plaintiff was observed by the driver and the other occupants of the car; that the horn of.'
Tbe plaintiff, however, testified that be was standing near tbe street-car track for tbe purpose of signaling an approaching car and that be did not move from tbe time be took bis position there until he was struck by tbe automobile. There is some other evidence in tbe case which tends to corroborate this. This evidence raises a jury question. If a jury should find tbe testimony of tbe plaintiff to be true, there could be •no doubt about tbe negligence of tbe driver, because there is abundant evidence to show that plaintiff could be plainly seen and was seen and that there was plenty of room to pass him. Once it is established as a verity in tbe case that tbe plaintiff did not move from tbe position in which be stood, it would be difficult to escape tbe conclusion that tbe driver would have been guilty of manslaughter if plaintiff bad been killed; Tbe contention that there was no question with reference to tbe driver’s negligence for tbe jury to pass upon cannot prevail.
2. On tbe question of contributory negligence tbe case is ' somewhat closer. Tbe plaintiff apparently paid no attention to tbe automobile born. He says be did not bear it. He was not keeping a lookout for vehicles approaching him from tbe rear. However, be testifies that be bad been standing where he was but a very few seconds; that one street car bad run by him which be desired to take, and that be was intent ■on signaling another so as not to be delayed on bis homeward journey, and we think on tbe whole it was a question for tbe jury to answer whether or not he exercised under tbe circumstances that degree of care 'and prudence which is ordinarily exercised by tbe great mass of mankind under tbe same or similar circumstances.
Had the car and driver been hired from the garage keeper there would be no doubt that the rule of respondeat superior would apply. This court has so decided. Gerretson v. Rambler G. Co. 149 Wis. 528, 136 N. W. 186; Hannon v. Van Dycke Co. 154 Wis. 454, 143 N. W. 150. The law elsewhere is in harmony with these decisions, which really rest on the principle established in numerous cases dealing with the liability of livery-stable keepers. See notes to Frerker v. Nicholson (41 Colo. 12, 92 Pac. 224) 13 L. R. A. n. s. 1122, and Morris v. Tredo (83 Vt. 44, 74 Atl. 387) 25 L. R. A. n. s. 33; Berry, Automobiles, § 147; also note to Kellogg v. Charity C. Foundation (203 N. Y. 191, 96 N. E. 406), cited in 26 Am. & Eng. Ann. Cas. 886; 1 Thomp. Comm. on Neg. § 581; Meyers v. Tri-State A. Co. 121 Minn. 68, 140 N. W. 184.
There are also some cases which approach the one under-consideration more closely in their facts than do the cases cited. In these cases the occupant of the vehicle owned it,, but the horse and driver were furnished by the liveryman. In such cases the latter has been held liable for the negligence of the driver. Kellogg v. Charity C. Foundation, 203 N. Y. 191, 96 N. E. 406 (see comprehensive note to this.
The ease of Neff v. Brandeis, 91 Neb. 11, 135 N. W. 232, 39 L. R. A. n. s. 933, is not distinguishable in principle from .tbe case under consideration. There the defendant owned .the'car and kept it in a garage under a contract to pay a .stipulated sum for storage and for a driver whenever desired. The accident occurred while the chauffeur was taking the car from the defendant’s home to the garage. The defendant was not in the car when the accident occurred, but if the chauffeur was the defendant’s servant while defendant was riding in the car, surely he was his servant for the purpose ■of taking the car from the defendant’s home to the place where he desired it stored. The court held that the chauffeur was not the owner’s servant.
The case of Dalrymple v. Covey M. C. Co. 66 Oreg. 533, 135 Pac. 91, 48 L. R. A. n. s. 424, in which the garage owner was held liable, would also seem to be on all-fours with the present one. There the owner of the car was occupying it when the accident occurred and had given directions where to go and when to stop to the chauffeur furnished by the defendant.
The mere fact that Father Fardy was the owner of the automobile does not make him responsible and much less solely responsible for every injury caused by it. Steffen v. McNaughton, 142 Wis. 49, 124 N. W. 1016; Cunningham v. Castle, 127 App. Div. 580, 111 N. Y. Supp. 1057; Reynolds v. Buck, 127 Iowa, 601, 103 N. W. 946; Babbitt, Motor Vehicles, § 582.
The respondent cites a number of cases as holding that, where the general servant of one person is loaned or furnished to another, he thereupon becomes the servant of the •one for whom the service is being performed and the latter is liable for his negligence. This is no doubt accurate enough
By the Court. — Judgment reversed, and cause remanded for a new trial.