Cleveland v. Newsom

• Citation: 45 Mich. 62,7 N.W. 222
• Court: Supreme Court of Michigan
• Decision Date: 10 November 1880
• Parties: CLEVELAND v. NEWSOM.

7 N.W. 222

45 Mich. 62

CLEVELAND v. NEWSOM.

Supreme Court of Michigan

November 10, 1880

Where a master was sued for injuries caused by his servant running over plaintiff in the street, held, that a statement of the servant immediately after the injury, that he did not intend to do it, was proper as part of the res gestae. In such case where the proof showed an employment, and an act done or being done in the course of such employment, held, that the burden of proof was on the defendant to show that at the time of the accident the servant was acting outside of his employment. Where a servant inflicts injury in the course of his employment, the mere fact that his recklessness and violation of his master's instructions caused such injury will not relieve the master from liability. Courts cannot take judicial notice how much a street is used, and the mere fact that one was walking in the street at the time run over by another, does not show contributory negligence.

Error to Lenawee.

Hadley & Goff, for plaintiff in error.

Millard & Bean, for defendant in error.

COOLEY J.

Newsom sued Cleveland to recover for an injury received by plaintiff in being run over by a horse of defendant, driven by a boy who it was alleged was at the time in defendant's employ. The evidence tended to show that the plaintiff was walking along in the public highway, when the boy drove up behind him in a sleigh, and called out to another boy, "Shall I run over him?" or perhaps, as one witness says, "Will I run over him?" and before plaintiff could get out of the way, he was struck by one of the thills to the sleigh and injured. Plaintiff testified that he had not heard the vehicle coming until the boy called out. After the plaintiff was struck, the boy stopped the horse and came back and said he did not mean to do it. Proof of this last fact was objected to, but received. The evidence that the boy was in the employment of the defendant at the time was from witnesses who testified that he was on an errand to a cooper shop to get butter tubs for defendant, but whether he was on the direct route to or from the shop was not shown.

1. There was no error in receiving in evidence the statement of the boy that he did not mean to run over the plaintiff. It was made immediately after the collision, and as nearly as possible at the same time. It was as much a part of the res gestae as would have been an exclamation at the very instant the plaintiff was struck. Hyatt v. Adams, 16 Mich 180; People v. Pitcher, 15 Mich. 397; Lambert v People, 29 Mich. 71.

2. The evidence that the boy was acting in his employment at the time was ample. It is suggested that he might have been driving about for his own pleasure, away from the road to the cooper's shop, but the court or the jury could not assume this without evidence. The...