Aronovitch v. Ayres

• Decision Date: 11 November 1937
• Citation: 169 Va. 308
• Parties: D. ARONOVITCH, DOING BUSINESS UNDER THE NAME OF KINGS DISTRIBUTORS v. MARION AYRES.
• Court: Virginia Supreme Court

Page 308

169 Va. 308

D. ARONOVITCH, DOING BUSINESS UNDER THE NAME OF KINGS DISTRIBUTORS v. MARION AYRES.

Supreme Court of Virginia, Richmond.

November 11, 1937.

Present, All the Justices.

1. APPEAL AND ERROR — Conflicts in Evidence — Settled by Verdict. — Where a verdict is affirmed, the Supreme Court of Appeals must assume that all conflicts in evidence were properly decided in favor of the litigant prevailing, provided always that it was supported by testimony which a jury, with fair reason, could have accepted.

2. AUTOMOBILES — Master and Servant — Duty of Owner to Equip Truck with Safety Appliances — Case at Bar. — In the instant case, an action by the assistant and relief driver of a truck, engaged in long distance hauling, against the owner of the truck for injuries received when the truck left the road, there was evidence tending to show that the accident was due to defective brakes.

Held: That if knowledge of the defective brakes, or failure to supply brakes which should hold, could be charged against the truck owner, he was liable, for it was his non-assignable duty to equip the truck with all proper safety appliances.

3. AUTOMOBILES — Degree of Care Required in Operation of Truckes Engaged in Long Distance Hauling. — Trucks engaged in long distance hauling, sometimes inordinate in size, measurably monopolize the highways and add to the peril of their use, and it is in the light of their potential destructiveness that a high degree of care is but ordinary care.

4. AUTOMOBILES — Trucks — Dangerous Instrumentalities. — Automobiles may not be in themselves dangerous instrumentalities, but trucks in the nature of freight cars which operate along the public highway, intended for the common use of all the people, are dangerous instrumentalities.

5. AUTOMOBILES — Master and Servant — Duty of Owner to See That Truck Is Kept in Good Operating Condition. — The non-delegable duty rests always upon the master of a truck, engaged in long distance hauling, to see that it is in good operating condition. He must no only see that it is in good condition when it leaves the home station, but also must see that it remains so.

6. AUTOMOBILES — Master and Servant — Imputation of Driver's Knowledge of Defective Brakes to Owner of Truck — Case at Bar. — In the instant case, an action by the assistant and relief driver of a truck, engaged in long distance hauling, against the owner of the truck for injuries received when the truck left the road, there was evidence tending to show that the accident was due to defective brakes. The plaintiff twice told the driver of the truck on a previous trip that the brakes were not holding, and the driver twice promised to give them prompt attention, but nothing was done towards remedying the defect.

Held: That the knowledge of the defective condition of the brakes which the driver, the vice-principal, had was imputed to the master, the owner of the truck.

7. AUTOMOBILES — Master and Servant — Imputation of Driver's Knowledge of Defective Brakes to Owner of Truck — Failure of Driver to Inform Owner — Case at Bar. — In the instant case, an action by the assistant and relief driver of a truck, engaged in long distance hualing, against the owner of the truck for injuries received when the truck left the road, there was evidence tending to show that the accident was due to defective brakes. The plaintiff twice told the driver of the truck on a previous trip that the brakes were not holding, and the driver twice promised to give them prompt attention, but nothing was done towards remedying the defect.

Held: That it was the duty of the owner of the truck to act upon the information which he had or with which he was charged and the failure of the driver, the vice-principal, to pass on plaintiff's complaint to him was no excuse.

8. AUTOMOBILES — Master and Servant — Duty of Truck Owner to Remedy Defects — Sending Truck to Shop in Routine to Be Looked Over — Case at Bar. — In the instant case, an action by the assistant and relief driver of a truck, engaged in long distance hauling, against the owner of the truck for injuries received when the truck left the road, there was evidence tending to show that the accident was due to defective brakes. The plaintiff twice told the driver of the truck on a previous trip that the brakes were not holding, and the driver twice promised to give them prompt attention, but nothing was done towards remedying the defect.

Held: That it was the duty of the master, the owner of the truck, to see that the defect in the brakes was remedied before the truck went out again, and that duty was not discharged when he sent the truck to a shop in routine to be looked over.

9. FELLOW SERVANTS — Statement of Rule. — Ordinarily there can be no recovery for an accident caused by the negligence of a fellow servant unless the common-law rule be modified by statute.

10. FELLOW SERVANTS — Who Are Fellow Servants. — All serving a common master, working under the same control, deriving authority and compensation from the same source, and engaged in the same general business, although in different grades or departments, are fellow servants, and take the risk of each other's negligence.

11. AUTOMOBILES — Fellow Servants — When Driver of Truck Vice-Principal in Relation to Assistant — Case at Bar. — In the instant case, an action by the assistant and relief driver of a truck, engaged in long distance hauling, against the owner of the truck for injuries received when the truck left the road, there was evidence tending to show that the accident was due to defective brakes. Plaintiff and the driver of the truck tood shifts in driving, and each helped to load and unload it, but its care was in terms put upon the driver alone and to him plaintiff was directed to report and did report. Upon the driver was placed the burden of seeing that the truck was kept in condition.

Held: That the driver was, quoad the duty of keeping the truck in condition, a vice-principal, and not the fellow servant of the plaintiff.

12. FELLOW SERVANTS — Who Are Fellow Servants — Servant May Be Vice-Principal in One Relation and Fellow Servant in Another. — One servant may be, in relation to a co-servant, a vice-principal in one relation and a fellow servant in another, depending on the particular duties he is discharging at the time. Whether he is the one or the other must be determined by an inquiry into the nature of the service which he was performing at the particular time of his alleged negligence.

13. AUTOMOBILES — Master and Servant — Assumption of Risk-Promise to Remedy Defective Brakes — Case at Bar. — In the instant case, an action by the assistant and relief driver of a truck, engaged in long distance hauling, against the owner of the truck for injuries received when the truck left the road, there was evidence tending to show that the accident was due to defective brakes. The plaintiff twice told the driver of the truck on a previous trip that the brakes were not holding, and the driver twice promised to give them prompt attention, but nothing was done towards remedying the defect. It was contended that as the plaintiff knew that the brakes were out of condition he assumed all incidental risks.

Held: That there was no merit in this contention, as the plaintiff had been told that the brakes would be repaired and he had a right to assume that this had been done.

14. MASTER AND SERVANT — Assumption of Risk — When Master Promises to Repair Defect. — Where the master promises or gives the servant reasonable ground to infer or believe that the defect will be repaired, the servant does not assume the risk of an injury caused thereby within such period of time after the promise or assurance as would be reasonably allowed for its performance, unless the danger is so palpable, immediate and constant that no one but a reckless person would expose himself to it, even after receiving such promise or assurance.

15. AUTOMOBILES — Master and Servant — Sufficiency of Evidence — Case at Bar. — The instant case was an action by the assistant and relief driver of a truck, engaged in long distance hauling, against the owner of the truck, to recover for injuries sustained when the truck driver, in an emergency created by another truck, applied the brakes, but was unable to stop until the truck had proceeded ninety-one feet and struck a large tree with such force that it was partially uprooted. There was evidence tending to show that the truck, with brakes properly adjusted, could have been stopped from within fifty-five to sixty-five feet, and an officer of the Highway Department testified that had the brakes been in good condition, the truck would have stopped within from seventy-five to eighty feet. The trial court refused a motion to strike plaintiff's evidence, and the jury returned a verdict in his favor.

Held: No error, as the evidence was ample to sustain the verdict.

16. MASTER AND SERVANT — Liability of Master for Acts of Servant — Liable for Negligence Regardless of Servant's Competency. — A master is responsible for damages suffered through the negligence of his servant, whether that servant be in fact competent or incompetent. He cannot escape liability by showing that his servant was a skilled worker, and that his skill was one of the reasons which brought about the employment.

17. MASTER AND SERVANT — Liability of Master for Acts of Servant — Liable for Injury Due to Servant's Negligence. — A master is not made liable for injuries suffered by a third person at the hands of his servant by the mere fact that an accident occurred, and if negligence on the part of the servant is not made to appear, there is no liability, however unskilled the workman may be or however careless he may have been on former occasions. Between incompetency, carelessness and the accident there must be some causal connection.

18. MASTER AND SERVANT — Duty to Provide Competent Fellow Servants. — Where the...