202 P. 749 | Mont. | 1921
delivered the opinion of the court.
In this case it appears that the defendant Sherman & Reed, a Montana corporation, is engaged in the taxicab business in the city of Butte, and that the defendant Earle Hutchinson was in the employ of the defendant corporation as a chauffeur or driver of one of its taxicabs. On December 24, 1916, the
The only error assigned is the giving to the jury of plain-
“You are further instructed that Sherman & Reed, a corporation, is liable for any negligent acts or omissions of the said Earle Hutchinson, causing damage to person or property done by the said Earle Hutchinson in his employment as a driver, while driving a motor vehicle, whether done willfully or negligently or otherwise in.the same manner as said driver' would be liable.”
It is argued that this instruction is erroneous, as it directs the jury to find for the plaintiff as'respects the negligence of the defendant corporation, assuming its employee guilty of
If any ambiguity may be said to exist in consequence of the language used in this instruction, the corree c principle of law applicable to the defendant corporation’s responsibility was made clear by other instructions given.
In instruction ID, the jury was told: “Negligence is the failure to do what a man of ordinary care and prudence would do in the same circumstances, or the doing of something that a man of ordinary care and prudence would not do under the same circumstances. If there was no negligence on the part of Sherman & Reed’s driver, Earle Hutchinson, then you must find your verdict in favor of Sherman & Reed.”
And by instruction 2D, it was admonished: “The court instructs you that the burden of proof in this ease is on the plaintiff, Frank Rohan; that is to say, he must prove his case by a preponderance of the evidence, and he must in particular prove by a preponderance, of the testimony that in some respect set forth in the complaint the driver, Earle Hutchinson, was negligent. If the evidence is evenly balanced on this phase of the case you must find your verdict in favor of Sherman & Reed, and, of course, if the evidence preponderates in favor of Sherman & Reed on this phase of the ease, you must find your verdict in their favor.”
These instructions were given at defendant’s request, without objection, and fully covered the subject of defendant’s negligence, and the acts of the servant rendering the master liable.
The instruction complained of was drawn upon the theory that defendant’s admission that Hutchinson’s acts were within the scope of his employment made it proper. (Hogan v. Shuart, 11 Mont. 498, 28 Pac. 969.) The language of the
The judgment and order are affirmed.
Affirmed.