Vernon v. Cornwell

104 Mich. 62 | Mich. | 1895

Hooker, J.

The plaintiff, a woman, while riding in a ■wagon with her brother, was thrown upon the highway -and injured, by reason of a collision, caused by the negli.genee or design of the defendant’s teamster, who was following.

The greater part of appellant’s brief is devoted to a discussion oí the proposition that the teamster was not acting within tffe scope of his employment at the time of the collision, and that consequently the defendant ought not. to be held liable for his act. The most that can be said from the record upon this subject is that there was evidence tending to show that the teamsters were voluntarily-running their horses, as they were returning from the city of Flint, where they had been with loads of grain for th’edefendant. We cannot say that this was conclusively established, even were we to hold that such fact would relieve-the defendant from responsibility. In accordance with the request of defendant’s counsel, the court instructed the-jury that if they should find that the collision was caused by the wrongful act of the teamster, which act was beyond the scope of the defendant’s business, and that such act-was wantonly done, the verdict must be for the defendant. It being a question for the jury, left to them under the instructions asked by the defendant’s counsel, who did not. request a fuller explanation of the law in relation to what-constitutes an act within the scope of employment, we discover no error upon this point. The teamster testified that-he was unable to restrain his horses, and that they were-running against his will; hence we cannot agree with counsel in the statement that “it is indisputable that the damage was done by the wantonness of the teamster.”

Counsel suggests that evidence offered concerning defendant’s knowledge of the teamster’s habits of intemperance-was immaterial, because the proof shows that he was not-intoxicated at the time of the accident. As the record shows that he admitted that he drank that - day, we cannot say that his sobriety on that occasion was beyond dispute. If found, it was a circumstance consistent with negligence.

An examination of the other assignments relied upon discloses nothing that calls for discussion.

We find no error in the record, and therefore affirm the judgment.

McGrath, O. J., Grant and Montgomery, JJ., concurred. Long, J., did not sit.