89 P.2d 602 | Mont. | 1939
Lead Opinion
When defendant Morrison took his own automobile and selected the time and route of making a trip for the personal benefit of himself and family, he and his auto were not, as shown by the authorities cited below, during such time "entirely under the control and direction" (sec. 7794, Rev. Codes) of the Telephone Company and, therefore, the company cannot be held liable for his acts during that time. (5 Blashfield Cyc. of Automobile Law, sec. 3078, at p. 236; Hantke v. Harris Ice Mach. Works,
The motions of the telephone company for a nonsuit and for a directed verdict should also have been granted upon the ground that the plaintiff's evidence conclusively shows that he was guilty of contributory negligence in not seeing Morrison's automobile approaching and in failing, while approaching from the south onto the traveled portion of the highway, to look to the west after leaving the sidewalk along the north side of his store and before entering onto such portion thereof. It stands undisputed that he failed to do this.
A person is presumed to see that which he could have seen by looking and will not be permitted to say he did not see or know what he must have seen or known had he looked. (Autio v.Miller,
The rule repeatedly announced by this court where persons so approach a railroad track should apply equally to a person approaching the oiled portion of a highway on which autos usually travel, although we concede the weight of authority is to the *191
effect that the rule applicable to railroad crossings does not apply to highway crossings generally. The danger zone was the oiled portion and plaintiff knew it. (George v. Northern P.Ry. Co.,
Morrison was a regularly employed lineman for the telephone company; he worked with a gang, in charge of a foreman, which traveled from town to town in Montana doing work for the company; he on several occasions, used his own car in moving with the knowledge of his foreman; on September 11, 1936, the *192 day of the accident, he was ordered by the foreman to go from Roundup to Miles City, and went there in his own car with the knowledge of the foreman, for the purpose of finishing a job he had started; he was under the control of the foreman while he was making the trip from Roundup to Miles City; was paid on an hourly basis by the day and not by the week; he testified that he was "on company time" until 5 o'clock on September 11, and was paid his regular wage for that day; the accident happened at 4:30; immediately after the accident, Morrison stated that he was working for the telephone company and had to "get to his job."
Does the evidence show that Morrison, at the time of the accident, was engaged in the scope of and within the course of his employment? We submit that it does. It is to be noted that the cases dealing with this question fall into two main groups. Those cases following the majority rule and that constitute the decided weight of authority hold that the fact that the servant owned or hired the vehicle used by him, and which caused the injury, will not preclude the injured person from recovering from the employer if (a) the activity engaged in by the servant at the time the tort was committed was within the scope of his employment and (b) if the servant's use of the vehicle was either expressly or impliedly authorized by the employer.
The cases following the minority view hold that, in order to hold the master liable, it must appear, in addition to (a) and (b) above, that the master had control of his employee as to the operation and management of his car. This particular point has been carefully annotated in 57 A.L.R. 739, 60 A.L.R. 1163, 87 A.L.R. 787, and 112 A.L.R. 920. The majority rule is stated by the annotator in 112 A.L.R., page 921, as follows: "If the circumstances involved in the case show that the activity in which the servant was engaged at the time of the tort complained of was within the scope of his employment, the fact that the automobile or other vehicle used by him, and which caused the injury, belonged to or was hired by the servant, will not preclude the person injured from recovering from the employer, if the servant's use of the vehicle *193
was, either expressly or impliedly, authorized by the employer." It is especially to be noted that among the cases cited in the annotation following the quoted statement are to be found two Montana cases: Meinecke v. Intermountain Transp. Co.,
The witness Bender testified that when he said, after the accident, that Morrison should be held, Morrison said: "You don't have to hold me. I got to get to my job and I'm working for the telephone company." Many cases hold that statements similar to this are admissible as part of the res gestae to show that the servant was acting within the scope of his employment at the time of the accident. (DuBois v. Powdrell,
Webster was not contributorily negligent. Regardless of how plaintiff got on the crossing, it was Morrison's duty to avoid running into him if it was possible to do so. Appellants contend that he should have kept a continuous lookout. This is *194
not the law, and never has been. In fact a pedestrian crossing a street at a regular crossing is not bound to look at all. (Berry on Automobiles, sec. 3.192; Redick v. Peterson,
"A pedestrian lawfully crossing a public thoroughfare is not bound as a matter of law to look continuously for automobiles." (79 A.L.R. 1073, 1082.) As Webster had looked once on approaching the crossing and looked again as he was about to step on the crosswalk and saw no cars in the block to the west of him, it was not incumbent upon him to look again. He knew from experience that he could at least reach the center of the highway before a car driven 25 miles per hour, which might have been at the beginning of the block 300 feet away as he stepped on the crossing, would not get to the crossing before he would get to safety. He had a right to assume that Morrison would drive carefully at a reasonable, prudent rate of speed and have his car in such control that it could be stopped quickly. There is no question but what a pedestrian crossing at other than a regular crossing, or crossing between intersections, must use more care than one crossing on an established pedestrian crosswalk. (Berry on Automobiles, sec. 3.200). Here, Webster was crossing on the regular pedestrian crosswalk. As to the duty of a pedestrian crossing a highway at an established pedestrian crossing, the following authorities are in point: 5 Am. Jur., sec. 452, p. 760; Berry on Automobiles, secs. 3.188-3.200; 79 A.L.R. 1073; McKeon
v. Kilduff,
During the progress of the trial separate motions, made on behalf of each defendant, for nonsuit and directed verdict were made and denied. Errors are assigned on these rulings. Both defendants founded their motions upon the ground that plaintiff was guilty of contributory negligence, barring his right to recover, and the defendant Telephone Company moved upon the additional ground that the defendant Morrison was not at the time of the injury acting within the scope of his employment.
Plaintiff's place of business was located at the corner of this street intersection. A concrete sidewalk, 7 feet and 1 inch in width, was along the side of the building occupied by plaintiff on Main Street; this street was 80 feet in width. Along the center of the street for a distance varying from 22 to 24 feet in width was the oiled or paved portion of the highway. On the side of this paved portion, between it and the concrete sidewalk, was a portion of the street 21 feet 9 inches in width, which was graveled. Leading out from the sidewalk to the paved or oiled portion of the street and highway was a concrete crosswalk. *196
The plaintiff on September 11, 1937, at the hour of approximately 4:30 in the afternoon, desiring to secure some milk from the grocery store across the street, for the purpose of preparing a milk drink for a waiting customer, left his place of business, proceeded across the sidewalk to the curb and looked down the street in a westerly direction. He could see for a distance of some five or six blocks looking westward. He testified that he saw no car approaching within the block. His testimony does not indicate that he looked beyond the block and he testified positively that no car at the time he looked was within this block.
The defendant Morrison was driving his automobile in an easterly direction along the highway on the oiled portion of it at a speed of 45 miles an hour or more according to witnesses for the plaintiff. The plaintiff, after looking to the westward, proceeded in a northerly direction at a rapid walk along the crosswalk onto the paved portion and was struck at or near the center of this portion of the highway by the automobile driven by Morrison. He did not recall looking to the westward after he started along the crosswalk.
It is earnestly contended here that plaintiff could have seen the car driven by Morrison approaching if he had looked, and failing to again look after approaching the edge of the paved portion, he was guilty of contributory negligence as a matter of law.
The traffic regulations through the town of Custer, as[1] indicated by appropriate signs to the westward of the point of the accident, required that the speed through the town should not exceed 25 miles per hour. We have held that a person is presumed to have seen what he could have observed by looking. (Boepple v. Mohalt,
At a street crossing a pedestrian need only exercise such[2, 3] reasonable care as the case requires, for he has the right to assume that a driver will also exercise due care and approach the crossing with his vehicle under proper control. Both are required to exercise the degree of care that conditions demand. (McGregor v. Weinstein,
In the light of the testimony we cannot say, as a matter of law, that the plaintiff was guilty of contributory negligence, barring his right to recovery, and therefore the trial court properly submitted the question of contributory negligence to the jury.
The defendant Morrison had been employed for some time as a[4] lineman by the defendant Telephone Company at various points in the state. For some three weeks or more preceding this accident, Morrison had been working for the company at Roundup. Prior to that time he was employed by it at Miles City. On the day in question at or near noon he completed his work at Roundup. He was then ordered to report for work at Miles City. The company provided a truck in which the men employed in this "gang" were transported to and from work, and from one town to another. On this day the defendant Morrison was offered the opportunity of riding in this truck from Roundup to Miles City; instead he preferred to take his own private passenger automobile and drive it from Roundup to Miles City in order to transport his wife and children along with him. He paid all the expenses of operating the automobile. He was not required to report at Miles City until time to go to work on the following Monday morning, this accident having occurred on Friday afternoon. He was free to make any choice of routes and make the trip on any day in the interim that suited his convenience. He was paid his usual wages for the afternoon in question by the defendant company, although he was not required to perform any service for them. His superiors knew of his transporting himself *198 and family on previous occasions to be at his next place of work, and knew that he used his own automobile in going from Miles City to Roundup to engage in the work there required of him, and at least impliedly consented that he use his own car in returning to Miles City, where he was ordered to report for work on the following Monday, and where he lived before going to Roundup. He was returning to Miles City over the same route when the accident occurred that was traveled by him in going from Miles City to Roundup, and the same route that the company truck used. His regular work required him to move frequently from place to place. He arrived in Miles City on the evening of the same day that he left Roundup, being the day of the accident. He did not deviate from the regularly traveled route from Roundup to Miles City.
Defendant company contends that its motion for nonsuit should have been sustained on the ground that Morrison was not, at the time of the injury to plaintiff, acting within the scope of his employment with the defendant company. Plaintiff takes the view, and we think correctly, that on this point the case is controlled by that of Meinecke v. Intermountain Transp. Co.,
Hence, the fact that Morrison was partially serving his own purpose in transporting his family with him, does not preclude recovery against the defendant company. The test to be applied, is well stated by Chief Justice Cardozo speaking for the court inMarks' Dependents v. Gray,
Morrison's work was of the character that required frequent traveling from place to place. The customary use of his own car with the knowledge of his superiors must be held to have also been with the company's consent and at least implied authority. The fact that the employer furnished a truck with which to transport its employees does not relieve it of responsibility where, as here, it impliedly authorized its employee to use his own car. The fact that the employer furnished a truck for that purpose is proof of the fact that the matter of transporting its employees was part of the business of the employer. (Compare, Restatement Agency, sec. 229, illustration 13.) Additionally, Morrison in making the trip to Miles City was acting in obedience to the command of the defendant company to report there for duty. Where, as here, it authorized the employee to use his own car for the purpose of transporting himself, the employee in so doing was acting within the scope of the business of the employer. The rule is well established by the great weight of authority that the servant's negligent use of his own car in the service of the employer, by the *200 express or implied authorization of the employer, renders the employer liable for injuries sustained by a third person as a result thereof. (See note in 87 A.L.R. 787, 57 A.L.R. 739, and 112 A.L.R. 920.)
Defendant relies upon the case of Erickson v. GreatNorthern Ry. Co.,
The case of Khoury v. Edison Elec. I. Co.,
In Curcic v. Nelson Display Co.,
The court properly submitted to the jury the question of defendant company's liability under the doctrine of respondeatsuperior.
The judgment is affirmed.
MR. CHIEF JUSTICE JOHNSON and ASSOCIATE JUSTICES MORRIS and ERICKSON concur.
Concurrence Opinion
I concur in the result but not in all that is said in the above opinion. I do not believe this case is similar to the case of Meinecke v. Intermountain Transportation Company cited therein, or that the cited case constitutes a precedent for the decision of this case. *202