148 A. 455 | Pa. | 1929
Argued April 22, 1929. The defendant corporation, A. Rose Son, was engaged in furnishing paper mill supplies in Philadelphia. In the business it used a large auto truck with a covered driver's seat in front, back of which was an open platform seven feet wide and twelve to thirteen feet long with stakes or stanchions at the sides. It was driven by a man named Johnson and used in collecting bales of waste paper and other material. Jacob Zavodnick, plaintiff's husband, was a junk dealer located at or near Manayunk, a suburb of Philadelphia, from whom the defendant was in the habit of buying waste paper. In the winter of 1926, Zavodnick selected a place in Manayunk to which he desired to remove his business and arranged with defendant's manager to bring the fire marshal, whose consent was necessary to the removal, to meet him at the new location on February 22, 1926. Zavodnick came, but by some mischance they failed to meet him. Defendant's driver came by and after some talk Zavodnick climbed on the truck as it was starting toward the city. The truck was driven south on Twenty-Seventh Street and at the intersection of Somerset Street a wheel thereof struck a depression, some six inches deep, caused by the settling of a manhole. This jolted the truck so that Zavodnick, who was standing on the platform holding onto a stake, was thrown to the pavement and killed. The suit brought for the damages caused thereby resulted in a verdict for plaintiff and from judgment entered for the defendant non obstante veredicto she took this appeal.
An examination of the record discloses no sufficient evidence to support the verdict. Before the owner of a delivery truck can be held liable for injury to one whom the driver has permitted to ride thereon authority from the owner for such permission must be shown; here it was not. An employer is liable for the acts of his servant only when done in the scope of his employment: D'Allesandro et al. v. Bentivoglia,
Even if the defendant was responsible for the act of the driver and the latter was negligent, still plaintiff could not recover because of the contributory negligence of the deceased. As a passenger it was his duty to take the vacant seat by the driver. Making no effort to do so and standing on the open platform hanging to a stake was negligence per se. We have uniformly held that unnecessarily standing on the running board of an electric car or on its platform or on that of a steam railway car was contributory negligence. Speaking for the court, in Thane v. Traction Co.,
The judgment is affirmed.