84 N.J.L. 545 | N.J. | 1913
The opinion of the court was delivered by
The suit was to recover damages for personal injuries. Defendants were engaged in the business of automobile livery, renting out automobiles driven by chauffeurs of their own selection and paid by them. One Buhler was one of their regular customers, and on the occasion in question he hired of the defendants by telephone a five-passenger ear with driver, to meet him at a specified place and invited plaintiff to ride with him. Buhler was well known to defendant, and it was open to the jury to find that defendant understood and expected that he would utilize the capacity of the car by having others besides himself ride therein. While plaintiff was so riding, and while the ear was traveling toward a destination indicated by Buhler, the driver tried to crowd between a standing truck and the curb, the truck horses moved, and this led to a minor collision in which plaintiff was injured.
As to proximate cause, it was clearly a jury question whether the accident resulted from the concurrent negligence of the van driver leaving his horses unattended (if, indeed, that was negligent; see Belles v. Kellner, 38 Vroom 255) and of the chauffeur in attempting to pass under the circumstances. Hence, the tenth requpst was properly refused.
The question whether the chauffeur was the servant of Buhler or of the defendant was left to the jury; and this was certainly quite as favorable to defendant as it could expect. Normally, the driver of a hired convejrance when furnished and paid by the owner thereof is the servant of such owner and not of the hirer. The whole question was thoroughly discussed in New York, &c., Railroad Co. v. Steinbrenner, 18 Vroom 161. The question there involved was whether contributory negligence of the driver could be imputed to the hirer as master, and it was held that it could not unless the hirer exercised such control as to make the act of the driver his own. That ruling is applicable in the case at bar. It is claimed that such control was exercised; but to say the least, the evidence falls far short of removing this question from the domain of the jury.
The point most urgently pressed is that the plaintiff was not in the car by any express or implied invitation of defend
These considerations dispose also of the motion to nonsuit. The judgment will be affirmed.