Babbitt v. Say

• Decision Date: 13 March 1929
• Docket Number: 21426
• Citation: Babbitt v. Say, 120 Ohio St. 177, 165 N.E. 721 (Ohio 1929)
• Parties: Babbitt v. Say, Admr.
• Court: Ohio Supreme Court

165 N.E. 721

120 Ohio St. 177

Babbitt v. Say, Admr.

No. 21426

Supreme Court of Ohio

March 13, 1929

Negligence - Motion for directed verdict for contributory negligence - Evidence interpreted favorably to plaintiff and question for jury, when - Refusal to admit written statement of witness under cross-examination - Not prejudicial where contents admitted and not denied by witness - Respondeat superior inapplicable, in absence of power to control subordinate - Owner hiring out truck and driver as unit, liable to third person, when.

1.

In the trial of an action for damages for death by wrongful act upon a motion being made by defendant for a directed verdict at the close of plaintiff's case, upon the ground of the contributory negligence of the decedent, the evidence should be given the most favorable interpretation in behalf of plaintiff, and, if a reasonable inference may be drawn from such evidence that the decedent was exercising due care, such motion should be overruled and the question of contributory negligence submitted to the jury, under proper instructions.

2.

A witness may be cross-examined with reference to a written statement previously made and signed by him, concerning the facts under investigation; and where the record discloses the contents of such paper is incorporated piecemeal in questions propounded to the witness in the presence of the jury together with his answers thereto, the witness admitting making every statement contained in such writing, it is not prejudicial error to refuse admission of such written statement in connection with the cross-examination of such witness, there being no denials that would show contradiction and thus lessen the credit of the witness.

3.

The rule of respondeat superior rests on the power which the superior has a right to exercise and which, for the protection of third persons, he is bound to exercise over the acts of his subordinates. It does not apply where the power of control does not exist and, in the absence of an agreement to the contrary, the power does not ordinarily exist where there is no right of selection or discharge of such subordinate.

4.

Where an owner of an automobile truck hires it out, together with the driver, as a unit, at a stipulated price per hour, furnishes gasoline, oil and service to keep such truck in proper mechanical condition, selects and pays the driver and is the only one who can discharge such driver, and while the hirer may dispense with the services of such truck and driver as a unit, he has no such exclusive control over the driver that permits him to do more than to designate what work is to be done, under such circumstances the owner is liable in damages to a third person for injuries proximately caused by the driver's negligent operation of the truck, within the scope of such employment.

This is a proceeding in error to reverse the Court of Appeals of Mahoning county. The action originated in the court of common pleas of that county, and was one for damages brought by Willis Nelson Say, as administrator of the estate of James Brocius, deceased, against Kenneth J. Babbitt. The facts upon which the case was founded are, briefly, as follows:

On September 16, 1926, at about 5 o'clock in the afternoon, the deceased, James Brocius, was killed by a truck belonging to Kenneth J. Babbitt. At that time this truck, and its driver (one Walling), was engaged in doing work for the Wester Coal & Supply Company, upon an hourly basis, the said Wester Coal & Supply Company having hired said truck, together with its driver, from Kenneth J. Babbitt, plaintiff in error, the time being figured from the hour when the driver of the truck "punched in" the clock at the Wester Coal & Supply Company's yard in the morning until he "punched out" the clock at the close of his service for such company later in the day. Where the driver was to go, the material he was to haul, and all other details of his work were exclusively under the control of the Wester Coal & Supply Company. The owner of the truck, plaintiff in error herein, paid the chauffeur his wages, kept the truck in mechanical condition to perform the service, and had the right to discharge the driver; but the driver was to do whatsoever he was instructed to do by the party that hired the truck from the plaintiff in error. That is "whatever they directed I [Babbitt] would do, sure, and the man with the truck would do so."

If the party hiring the service was dissatisfied with the chauffeur, he had no right to discharge him, but could discharge the unit; that is to say, in this instance, he could return the truck, together with the chauffeur, to the plaintiff in error. But such person so hiring the truck and driver had no further control over him than to direct the nature and kind of service and work required.

At the time of the accident the truck was in charge of Walling, the chauffeur for plaintiff in error, hauling material for the Wester Coal & Supply Company, traveling downgrade in an easterly direction along Indianola avenue, toward the Wester Company's yard, at a speed of about 25 miles per hour; Indianola avenue in Youngstown not being within the closely built up portion of the city. The decedent and one Isaman were engaged in oiling the hoist of a truck that was standing on the north side of the street in question, entirely off the paved portion thereof. The paving was about 16 feet in width, with a space on either side unpaved between the sidewalk and the pavement.

The decedent had started to cross the street for the purpose of procuring oil with which to continue the work in hand, to wit, the oiling of the hoist of the truck on which he was working. He was crossing the street between intersections. The witness Isaman was standing on the north side of the truck on which he was working, at about the center thereof, and saw the accident from that point.

Brocius started across the street in a diagonal direction, and was struck near the north edge of the paved road. At the time that the decedent was first seen in the center of the paved portion of the highway, the defendant's truck was from 25 to 41 feet westerly from him and approaching, as above indicated, at about 25 miles an hour. The decedent appears to have run diagonally from 10 to 16 feet north and east, toward the north line of the paved part of the street. The truck turned to the left, that is, northerly, and followed the same direction as the decedent; the center of the truck colliding with the decedent at the north line of the pavement, as above indicated. Brocius seems to have been facing the truck at about the time of the impact, for he caught hold of the same and was hanging on to it and "bobbing up" over the radiator. The decedent lost his hold and was run over by the truck; the crank case rolled him over, and the rear wheel passed over his chest and head, and he died within a few minutes.

It is claimed the truck was operated with undiminished speed throughout the transaction, and that the speed was not checked until after it had passed over the body, and that it did not come to a stop until it had traveled about 70 feet beyond the body.

There were several averments of negligence set forth in the petition: First, in causing and permitting the truck to collide with and kill the decedent; second, in carelessly, recklessly, and unlawfully operating the truck at the time and place in question; third, in carelessly, negligently, and unlawfully failing to keep a proper lookout ahead to warn decedent of the rapid approach of the truck in time to avoid injuring him; fourth, in carelessly and recklessly failing to keep the truck under proper control, and failing to change or divert the course of the same after defendant saw, or in the exercise of ordinary care ought to have seen, the danger and peril of the decedent; fifth, in failing to have the truck properly equipped with good and serviceable brakes, and in failing to have thereon a whistle or other warning in serviceable condition; sixth, in failing to keep the truck on the right side of the road.

The answer admitted the appointment of Willis Nelson Say as administrator of the estate of James Brocius, deceased; that East Indianola avenue is a highway in the city of Youngstown; and that the plaintiff's decedent came to his death by reason of colliding with a truck owned by the defendant, Kenneth J. Babbitt. Then followed a general denial of the allegations of the petition not specifically admitted to be true.

Upon the issues thus tendered by the pleadings the parties went to trial, and a verdict was returned for the plaintiff in the sum of $5,000. Motion for new trial was filed and overruled and judgment entered on the verdict. Error was prosecuted to the Court of Appeals, in which court the judgment of the court below was affirmed. Error is now prosecuted to this court to reverse such judgment.

Mr. H. H. Wickham, for plaintiff in error.

Messrs. Kennedy, Manchester, Ford, Bennett & Powers and Mr. William T. Swanton, for defendant in error.

DAY, J.

There are three major grounds of error urged in this case: First that the court should have directed a verdict upon the question of the contributory negligence of the plaintiff's decedent; second, that the court erred in not admitting the written statement of the witness Isaman, made before the trial, to a representative of an insurance company acting on behalf of the plaintiff in error, Babbitt; third it is claimed by plaintiff in error that thesis no liability on the part of the owner of an automobile truck which, with its driver, is hired to a third party on an hourly basis, because such driver becomes the special servant of the hirer and relieves the general owner of liability for his negligent acts...