In view of the admissions in the pleadings in this action, the only question involved in the first issue submitted to the jury was whether the plaintiff’s injuries were caused by the negligence of the defendant L. M. Hipp, as аlleged in the answer.
It is alleged in the complaint, and admitted in the answer, that at the time thе plaintiff was injured he was riding in an automobile which was owned by the defendant the Quaker Statе Oil Refining Company, Inc., and driven by the defendant L. M. Hipp in the performance of his duties as its еmployee; and that the plaintiff was riding in the automo *119 bile upon the invitation of the defеndants, and for the purpose of aiding the defendant L. M. Hipp in the performance of his duties as an employee of the defendant the Quaker State Oil Refining Company, Inc.
On thеse admissions in their answer, both the defendants are liable to the plaintiff for the damagеs which he sustained as the result of his injuries, if his injuries were caused by the negligence of the defеndant L. M. Hipp*, as alleged in the complaint. It is elementary law that the employer is responsible for the negligence of his employee which results in injury to a third person, when thе employee is acting within the scope of his employment, and about his employеr’s business. See
Martin v. Bus Line,
The evidence at the trial tended to show that as the plaintiff and the defеndant L. M. Hipp were riding in the automobile, on a State highway between the town of Fountain and the town of Earmville, at a speed of 35 to 37 miles an hour, the automobile side-slippеd or skidded, and that the defendant L. M. Hipp, the driver, attempted to control the automobile by turning the steering wheel from his right to his left, and vice versa, with the result that the automobile “zig-zagged” across thе highway until it went off the highway and down an embankment, with the result that both the plaintiff and the defendant L. „M. Hipp were injured. The evidence tended to show further that the highway was wet and slippery, аnd that the tires on the automobile were worn and slick. The plaintiff testified as follows:
“The road between Pinetops and Earmville is of material commonly used in highway construction, and is paved. The road was damp, due to the mist which had fallen during the day on it. ¥e had trouble between Fountain and Earmville. A few miles out of Fountain, the automobile side-slipped. We had been driving at a speed of 40 to 42 miles per hour. I said: ’Mr. Hipp, why does this car side-slip when wе are running no faster than we are?’ He replied, ’The tires are worn out.’ I said, ’Why don’t you put on new tires ?’ He said, ’I intended to do so, but the district manager of the company told me to kеep down expenses.’ He said he was going to slip- new tires on the automobile, one at a time. I told him that he had better slow down. He did so. We were running at a speed of 35 to 37 milеs per hour when the automobile side-slipped and skidded. Mr. Hipp was not able to right the аutomobile with the steering wheel.”
There was no evidence which tended to show that the plaintiff knew that the tires on the automobile were worn and slick until his conversation with the defendant L. M. Hipp, almost immediately before the accident.
The evidence in this casе was properly submitted to the jury as tending to show that the plaintiff was injured by the negligence оf the de
*120
fendant L. M. Hipp. Tbe mere fact tbat tbe automobile side-slipped or skidded wаs not in itself evidence of its negligent operation by tbe defendant.
Springs v. Doll,
There was no error in tbe refusal of tbe court to give tbe special instruction as prayed by tbe defendants. Whether or not tbe сonduct of tbe defendant L. M. Hipp, after tbe automobile bad skidded on tbe highway, in attempting to control it, was tbat of a prudent man was for tbe jury and not for tbe court to determine. Tbe instruction, as properly modified by tbe court, was given in tbe charge to tbe jury.
Newman v. Queen City Coach Company,
Tbe refusal of tbe court to set aside tbe verdict on tbe ground tbat tbe damages assessed by tbe jury are excessive is not reviewable by this Court.
Lane v. R. R.,
Tbe assignments of error on this appeal cannot be sustained. Tbe judgment is affirmed.
No error.