106 So. 258 | Miss. | 1925
Lead Opinion
Conceding every material fact which appellee's evidence tends to prove, the question is whether or not there is any liability on the part of appellant. If that question is to be answered in the affirmative, then the verdict and judgment appealed from must stand. On the other hand, if it is to be answered in the negative, appellant was entitled to a directed verdict in its favor as requested.
Appellee's evidence showed that the collision and damage done her car was through the negligence of the driver of appellant's truck, one R.W. Fuller, who was at the time appellant's plant foreman, but was driving appellant's truck on a mission of his own. On the day of the collision between the truck and car there was an Easter egg hunt for the children in the National Military Park at Vicksburg. Mr. Fuller, appellant's plant foreman, borrowed one of its commercial trucks used in connection with its business for the purpose of transporting to and from the Easter egg hunt several children. It is therefore without conflict in the testimony that at the time of the collision Mr. Fuller, the driver of the truck whose fault caused the collision, was not acting in furtherance of his master's business (the business of appellant), but was acting entirely without the scope of his authority.
Appellee, however, seeks to justify the judgment appealed from upon the principle that an automobile is a dangerous instrumentality — is per se dangerous — and therefore the owner is under the duty to so guard it and control it as that it will not cause injury to others. In other words, appellee would classify automobiles with what are called dangerous instrumentalities such as ferocious animals, dynamite, gunpowder, and other inherently dangerous contrivances and agencies, and hold the owner liable for injuries resulting in its negligent operation whether the driver be the servant or bailee of *548 the owner. If an automobile is to be so classified, undoubtedly, under the authorities, the owner is liable for injuries caused by its being negligently operated regardless of whether the driver guilty of the negligence be his servant or bailee.
The question, therefore, is whether or not an automobile is such a dangerous agency as that it is the duty of the owner to so control it and guard it as that it shall not cause injury to others. Babbitt, on the Law Applied to Motor Vehicles, section 615, pp. 409-410, states that an examination of the cases on the subject discloses that they are practically unanimous in holding that a motor vehicle is not in the class of dangerous agencies; that they are not to be classified with what are called dangerous instrumentalities such as ferocious animals, dynamite, gunpowder, and other inherently dangerous contrivances, and that statement appears to be true. In section 609, page 400, of this work, the author speaks of two decisions which indicate a drifting the other way. In discussing those cases he uses this language:
"A statute giving a liability in rem on an automobile causing an injury has been recently upheld, and in another case flying in the face of all previous authority the court leaves it to the jury to say whether the owner of a car is liable for the negligence of his chauffeur while driving on an errand of his with the consent of the owner. The court attempts to justify his revolutionary decision by stating that the common law does not permit one to authorize another to use on the public highway an instrument which is peculiarly dangerous in its operation without imposing on such owner liability for negligent use. The liability grows out of the obligation of the owner to have the vehicle properly operated when it is by his authority on the public highway, and in another recent case the motor vehicle has been expressly called a `dangerous instrumentality.' The peculiar thing about these decisions in Florida and Kentucky is that they apparently overrule contrary decisions in these states." *549
There is a full and apparently exhaustive treatment of this subject in Berry on Automobiles (4 Ed.), section 1146, p. 1025, sections 1244 to 1251, inclusive, pp. 1125 to 1130, inclusive. See, also, Huddy on Automobiles (6 Ed.), section 642, p. 824. The authors of these works on the law as applied to motor vehicles appear to be in accord that to class such vehicles as dangerous instrumentalities in the sense of the doctrine contended for by appellee is substantially against the unanimous holding of the courts.
Among other authorities, appellee refers to Barmore v. V.S. P. Railway Co.,
In view of the rapid development of scientific knowledge and the great progress made of late years in mechanical inventions, many things at one time viewed as per se dangerous agencies are now considered of much benefit to mankind. The test is the degree of care required according to the circumstances in order to prevent these agencies becoming dangerous instrumentalities. Babbitt's Law Applying to Motor Vehicles, section 614, pp. 408 and 409. The result of our view is that this case must be reversed and judgment here for appellant.
Reversed, and judgment here.
Dissenting Opinion
Judge HOLDEN and I are of the opinion that an automobile or a motor truck, while being operated upon the *550
public highway or street, is a dangerous agency per se, and that the owner of the automobile is under duty to see that the machine is carefully operated so as to prevent injury to other persons using the street or highway, and that the case ofBarmore v. V.S. P. Railway Co.,
I am personally of the opinion (in which Judge HOLDEN does not concur) that if it be held that the ordinary automobile used for personal or family use upon the highway is not dangerous perse, that still the motor truck both for passengers and freight used for commercial purposes may be distinguished from the ordinary personal automobile, and that we certainly ought to draw the line on these heavy trucks used for the transportation of freight and passengers for commercial purposes, and hold the owners of such trucks responsible for the negligence of any person who the owner intrusts with their operation upon the public highways and streets of the state.
In the case before us the Vicksburg Gas Company had loaned its truck to one of its employees to take a party of friends on a Sunday out to the Military Park to engage in an Easter egg hunt. The servant to whom the truck was loaned was on duty all the time during the day subject to call at any minute to active service for the Company. The servant took the car and drove it out to the Military Park, and with him were a number of his friends. The manager of the Gas Company and his regular driver of the truck went out later to the park where the egg hunt was being carried on. An agreement was then made with the manager that the regular driver of the truck would take charge of the truck and drive the other employee and his family and friends back to their residences, and from thence carry the motor truck back to the plant of the Gas Company. On the return trip, *551 while this last arrangement was being carried out, the driver of the truck ran into an ordinary automobile in which the plaintiff was riding and injured it. Fortunately none of the persons were injured. The case was tried before a jury, and the jury found, upon competent evidence admitted for that purpose, that the driver of the truck, who was also on duty during the entire day subject to call at any minute by the Gas Company to any work it might need him to do, was negligent. In other words, the only question left open to reverse the case upon was whether the servant driving the car at the time was negligent while in and about his master's business.
It is the view of the court below that the Barmore case applies. And if it has application, the judgment must be affirmed as stated in the majority opinion.
There is, of course, a considerable difference in the views of the different states as to the doctrine of dangerous agencies; that is, agencies dangerous per se as characterized by the decisions of the different states of the union. Many of the states hold that an instrumentality is not dangerous per se if when it is standing in disuse it is not dangerous, while others hold that the question is to be determined by the methods of the ordinary operation of the truck or instrumentality. Our court, in the Barmore case beginning at 38 So. the bottom of page 213, 85 Miss. page 448, in a very able and lucid opinion by Judge TRULY, said:
"There is another theory developed by this record, which the appellant was entitled to have submitted to the consideration of the jury. It grows out of the well-established principle of law that a master who intrusts the custody and control of a dangerous appliance or agency to the management of a servant will not be permitted to avoid responsibility for injuries inflicted thereby on the plea that the servant, in the particular act complained of, was acting outside the scope of his employment. As stated in another connection in this opinion, we adhere to the general rule which exonerates the master *552
from liability for the acts of the servant committed beyond the scope of his employment; but this rule is not of universal application (being itself but an exception to the general rule which primarily imputes liability to the master), nor is it antagonistic to the position here assumed. The servant is empowered by the master to discharge certain duties, and it is incumbent upon him to exercise the same care and attention which the law requires of the master; and if that care and attention be about the management and custody of dangerous appliances, the master cannot shift the responsibility connected with the custody of such instruments to the servant to whom they have been intrusted and escape liability therefor. This rule arises from the absolute duty which is owing to the public by those who employ in their business dangerous agencies or appliances, engines or instruments — liable, if negligently managed, to result in great damage to others. The true rule, and the one supported by reason and authority, is thus stated in P.C. St.L.R. Co. v. Shields,
"The absolute duty of the master, which cannot be delegated, in reference to the degree of care demanded in the custody, control, and operation of dangerous instrumentalities, applies not to those alone which are operated or propelled by the power of steam, electricity, power, dynamite, or kindred forces, but to all instrumentalities employed by the master which, by reason of the method of their operation, are capable of, and liable to, inflict serious injury to others. The motive power is not the sole consideration in determining whether an instrumentality falls within the general classification of `dangerous agencies and appliances.'
"An attempt has been made, in a very few illogically reasoned cases, to draw a distinction between instrumentalities `dangerous in themselves' and those `dangerous by reason of improper use,' and confine the master's liability to cases due to mismanagement of the former class alone. An analysis will show that the distinction is more imaginary than real, and too refined to be of any practical benefit as a method of determining legal responsibility. The argument has a degree of plausibility when limited to agencies inherently dangerous even when most carefully handled, such as dynamite and similar substances, as distinguished from those of like character, *555
such as gasoline, naphtha, and the like — only dangerous when proper precautions are not observed; but the sophistry of the argument becomes apparent, and refutes itself, when we come to the consideration of dangerous engines, machinery, or appliances. No appliance is `dangerous of itself,' but practically every appliance may become `dangerous by improper use.' Neither a locomotive, pile driver, electric or cable car, automobile, threshing machine, or team and wagon is `dangerous of itself,' yet with practical unanimity the courts hold the master liable for damages caused thereby, even though the servant who has the sole custody and control thereof is at the time acting willfully, wantonly, and in disobedience to his master's orders. And so, on the other hand, an ax, a crowbar, a scythe, and similar implements in daily use, are equally as deadly when improperly used; but no court would hold a master liable for the tortious act of his servant on the ground alone that he had intrusted the custody of such appliance to the servant. No appliance when at rest is `dangerous in itself.' It is by operation alone that it becomes capable of causing injury. So, in our opinion, a better test, though probably not itself without exceptions, of the master's liability, would be whether the agency or appliance, the custody and control of which he committed to his servant's judgment and discretion, was `dangerous in itself,' or liable to inflict serious injury to others, when operated in the customary method of use and while being devoted to the purposes for which it was designed. If so, the public safety demands that he shall be answerable for the exercise of his servant's judgment. We are not without eminent authority for this position: `Whenever a master sends his servant out beyond his own eye and immediate control, in the custody of any species of property of the master which, unless properly cared for, guarded, and used, is liable to work injury to third persons, it is necessarily a part of the duty which the master commits to the servant so to care for, guard, and use such *556
property as that it shall not work such injury.' 1 Thompson, Com. on Neg., section 589; Vicksburg J.R. Co. v. Patton,
"It is, of course, impracticable, if not impossible, to state any general definition by which it may be decided with any degree of certainty what appliances or agencies do, and what do not, fall within the term `dangerous,' as employed by courts and text-writers. The limit of human inventive genius has not yet been reached, and appliances are as variant as the uses to which they are devoted. And, again, something must depend on the circumstances attendant upon the use of the particular instrumentality in question. But we see no reason, justice, or legal principle in the distinction which would allow compensation for an injury inflicted by the misuse of a locomotive, electric car, or horse and wagon, and yet deny recovery, though the injury is to the same extent, and inflicted under similar circumstances, when caused by the mismanagement of a hand car or railroad tricycle. While the propelling power differs in each instance cited, all are subject to human control, and all are alike liable to cause serious injuries to others, and this is the real reason on which the liability of the owner is founded."
Judge WHITFIELD, in an elaborate opinion characterized by his usual polemical perspicuity, took the contrary view, and cited at great length the authorities which took that view in other states. But the majority opinion is, of course, the law of the state, and has been widely approved throughout the country in both aspects of the opinion. See Moore v. Wabash R. Co.,
In Weil v. Kreutzer,
"Greater care was incumbent upon him by reason of the deadliness of the machine he was propelling along the highway. The possession of the deadly and dangerous instruments always entails great care upon the possessor. One who walks along a crowded thoroughfare with a sharp scythe in his hands must use greater care in handling this instrument than would be required of him if he held an umbrella or small cane. The degree of care one must use always bears a direct ratio to the degree of injury which would probably be caused by negligence. When one comes through the highways of a city with a machine of such deadly force as an automobile, it is incumbent upon the driver to use great care that it be not driven against or over pedestrians. An automobile is nearly as deadly as, and much more dangerous than, a street car or even a railroad car. These are propelled along fixed rails, and all that the traveling public has to do to be safe is to keep off the tracks; but the automobile, with nearly as great weight and more rapidity, can be turned as easily as can an individual, and for this reason is far more dangerous to the traveling public than either the street car or the railway train."
In Southern Cotton Oil Co. v. Anderson,
"The law takes notice that certain things are a source of extraordinary risk, and a man who exposes his neighbor to such a risk is held, although his act is not of itself wrongful, to insure his neighbor against any consequent harm not due to some cause beyond human foresight. . . . Sometimes the term `consummate care' is used to describe the amount of caution required, but it is doubtful whether even this be strong enough. At least, we do not know of any English case of this kind (not falling under some recognized head of exception) where unsuccessful diligence on the defendant's part was held to exonerate him. . . . This amounts to saying that, in dealing with a dangerous instrument of this kind, the only caution that will be held adequate in point of law is to abolish its dangerous character altogether."
The opinion continues: "It is true that, in the early development of this very salutary doctrine, the dangerous agencies consisted largely of fire, flood, water, and poisons. . . . The underlying principle was not changed, but other agencies were included in the classification. Among them are locomotives, push cars, street cars, etc., and it is now well settled that these come within the class of dangerous agencies, and the liability of the master is determined by the rule applicable to them. The reasons for putting these agencies in the class of dangerous instrumentalities apply with equal, if not greater, force, to automobiles."
On page 260 of 16 A.L.R. (
In discussing the question of what was dangerous (
"Much confusion has resulted from the use by the courts and text-writers of a term so inadequate and unfit as `dangerous`per se' in discussing the liability of the owner of an instrumentality that is peculiarly dangerous in its operation, who permits another to run it on the public streets and highways.
"Wild animals and high explosives are dangerous per se; that is, they may inflict injury without the immediate application of human aid or instrumentality. Neither a locomotive, a trolley car, nor an automobile is dangerous per se — by or through itself — in that neither can inflict injury to a person except by its use or operation. A locomotive in the roundhouse, a trolley car in the barn, an automobile in a garage, are almost as harmless as canary birds; but, in operation, they are dangerous instrumentalities, and the master who intrusts them to another to operate — the one, on its right of way; the others, on the public highways — cannot exonerate himself from liability for injury caused to others by the negligence of those to whom they are intrusted."
The court then quotes from Barmore v. Vicksburg, S. P.R.Co., supra, and then says: "A judicial opinion *561 on established facts and well-known conditions, counter to the common opinion of the many on the same subject, is persuasive only to those who desire to accept the unreasonable and reject the obvious."
The court quotes statistics to show that the automobile is one of the greatest instruments of peril known to the country. The opinion of the Florida court throughout is so cogent and logical that I think we ought to follow it although the greater number of authorities of other states refuse to class motor vehicles, at least automobiles, as being within the class of instrumentalities dangerous per se, imposing liability for their negligent operation whether in service of the owner or not. I do not think we ought to go by mere numbers in following precedents of other states. The court ought to follow the best reasoned opinions having in view the safety of the public using the highways. A forty-minute speech by a Webster may have more force and convincing power than the fulminations of forty speakers of lesser capacity, judgment, and ability with unlimited time.
The automobile is certainly destructive to life and limb, and the operator should be held to strict accountability when using the public highways. The owner of such an instrumentality knows of its dangerous and destructive capacity, and he ought not to intrust it to any one except a person of great skill, prudence, and caution.
But when we come to consider the freight truck and the great passenger trucks being used upon the highways, carrying great loads and having great weight and enormous power, being able to sweep out of the road any ordinary automobile, to say nothing of persons and animals, it seems ridiculous to hold that they are not dangerous per se within the meaning of that rule as applied to railroad cars, motor vehicles, and similar instrumentalities.
The court in the Barmore case laid down a safe rule, one calculated to promote the public safety and welfare, and we should follow it, although the instrumentality *562 there was a motorcycle used on a railroad track, while here the instrumentality is a truck operated upon a highway. The truck has enormously more power and weight than a motorcycle of the type and character dealt with in the Barmore case. It seems to me that the very fact that usually these trucks are of great weight, carry great loads, and have enormous power is sufficient to distinguish them from the ordinary passenger automobile used for personal and family use. I therefore think the judgment of the lower court should be affirmed.
