Connor v. Pennsylvania Railroad Co.

• Decision Date: 14 March 1904
• Docket Number: 93-1902
• Citation: 24 Pa.Super. 241
• Parties: Connor v. Pennsylvania Railroad Company, Appellant
• Court: Pennsylvania Superior Court

24 Pa.Super. 241

Connor v. Pennsylvania Railroad Company, Appellant

No. 93-1902

Superior Court of Pennsylvania

March 14, 1904

Argued October 15, 1902

Appeal by defendant, from judgment of C.P. No. 2, Phila.Co.-1901 No. 196, on verdict for plaintiff in case of John J. Connor v. Pennsylvania Railroad Company.

Trespass to recover damages for personal injuries.Before Wiltbank, J.

The facts appear by the opinion of the Superior Court.

Verdict and judgment for plaintiff for $ 900.Defendant appealed.

Errors assigned were portion of charge quoted in the opinion of the Superior Court; refusal of binding instructions for defendant.

John G Johnson, with him J. Howard Rhoads and Edwin Jaquette Sellers, for appellant.-- A verdict should have been directed in favor of the appellant, because the uncontradicted evidence established the relation between itself and the driver of the hansom as that of bailor and bailee: Fowler v. Lock, L. R. 7 C.P. 272;Venables v. Smith, L. R.2 Q.B. Div. 279;Gates v. Bill, L. R.(1902)2 K. B. 38;Blattenberger v Little SchuylkillNav. Co., 2 Miles, 309;Harrison v. Collins,86 Pa. 153;Thomas v. Altoona, etc Elec. Ry. Co.,191 Pa. 361;Hunt v. Penna. R. R. Co.,51 Pa. 475;Allen v. Willard,57 Pa. 374;Congregation v. Smith,163 Pa. 561.

There was no evidence which justified a submission to the jury of the question whether the contract of hiring of the hansom was a cover or sham.

Frederick H. Warner, with him Arthur B. Houseman, for appellee.-- There was sufficient evidence of the relation of master and servant existing between the defendant and the driver of the hansom as to require its submission to the jury: McCoun v. N.Y. Cent., etc., R. R. Co.,66 Barb. 338;Powles v. Hider,88 Eng.Common LawRep. 207;Norris v. Kohler,41 N.Y. 42;Svenson v. Atlantic Mail S. S. Co.,57 N.Y. 108;Howard Express Co. v. Wile,64 Pa. 201;B. & O. R. R. Co. v. Hoge,34 Pa. 214;Brunner v. Tel. Co.,151 Pa. 447;Campbell v. Accident Assn.,172 Pa. 561;Kohler v. Penna. R. R. Co.,135 Pa. 346.

The evidence did not show any relation of bailor and bailee between the defendant and the driver of its hansom: Corbin v. American Mills,27 Conn. 274;Allen v. Willard,57 Pa. 374.

The plaintiff had a right to prove the defendant and driver to be master and servant, and such proof would necessarily show the alleged lease to be a cover: B. & O. R. R. Co. v. Hoge,34 Pa. 214;Powles v. Hider,88 Eng.Common LawRep. 207.

Before Rice, P. J., Orlady, W. W. Porter and W. D. Porter, JJ.

OPINION

W. D. PORTER, J.

The injuries for which the plaintiff seeks to recover were caused by a collision between the wagon in which he was riding and a hansom cab owned by the defendant company and then being driven by William Alexander.The only negligence alleged or attempted to be proved was that of the driver, and unless he was acting as the servant or agent of the defendant this judgment cannot be sustained.In an action to recover damages from one person for the negligence of another, upon the principle of respondeat superior, the plaintiff cannot recover unless it is made to appear that the relation of master and servant in fact existed, whereby the negligent act of the servant was legally imputable to the master: Stevens v. Armstrong,6 N.Y. 435;McCullough v. Shoneman,105 Pa. 169;Fuhrmeister v. Wilson,163 Pa. 310.Even where the relation of master and servant exists, the former is only liable for the acts of the latter done in the course of his employment, and while the question of what is within the course of such employment is usually one for the jury, when the facts are undisputed and it clearly appears that the act of the servant was outside the line of his employment it is the duty of the court to so declare: Towanda Coal Co. v. Heeman,86 Pa. 418;Arzt v. Lit,198 Pa. 519;Simmons v. Pennsylvania Railroad Co.,199 Pa. 232;Guille v. Campbell,200 Pa. 119.

The owner of property is not responsible for the negligence of a person acting independently, in the execution of some undertaking therewith or in connection therewith, when the owner does not have the right to control and does not control the method of execution: Hunt v. Pennsylvania Railroad Co.,51 Pa. 475;Harrison v. Collins,86 Pa. 153;Allen v. Willard,57 Pa. 374;Thomas v. Altoona, etc., Elec. Railway Co.,191 Pa. 361;Congregation v. Smith,163 Pa. 561;Hilliard v. Richardson,69 Mass. 349.The English cases which hold the owner of a public cab liable for the negligence of the driver, who at common law would have been a bailee of the vehicle are all based upon the provisions of the Metropolitan Hackney Carriage Act: Powles v. Hider,88 Eng.Common LawRep. 207;Fowler v. Lock, L. R. 7 Common Pleas 272;Venables v. Smith, L. R.(1877), 2 Q.B. Div. 279;Gates v. Bill, L. R.(1902)2 K. B. 38;King v. London Improved Cab Co., L. R.23 Q.B. Div. 281.The mere ownership of the cab in the present case did not render the defendant company liable, unless the driver was its servant, or the manner in which the cab was operated was subject to its control.

Proof of ownership may, under some circumstances, be sufficient to sustain an inference in favor of a third party that a person in charge of property was the agent or servant of the owner McCoun v. N.Y. Cent., etc., R. R. Co.,66 Barb. 338;Norris v. Kohler,41 N.Y. 42;Edgeworth v. Wood,58 N.J.L. 463(33 A. 940).The relation of the defendant company and the driver to each other was not, however, in the present case, left to mere inference.The plaintiff called Alexander, the driver, and proved by him that upon the day in question he" drove hansom No. 60, belonging to the Pennsylvania Railroad Co." but did not see fit to interrogate him as to how the cab came to be in his possession.Counsel for the defendant exercised their right to cross-examine the witness who testified that he had leased the cab from the defendant company under an agreement in writing which was produced and identified.The plaintiff did not even then see fit to offer this written agreement in evidence, but closed his testimony, which established, if it proved anything, that he had been injured through the negligence of a man who had leased a cab from the defendant company.The defendant company subsequently offered, in connection with other evidence, the written agreement under which the cab and two horses were hired to Alexander, and Alexander was recalled as a witness and examined and cross-examined at length.The oral testimony of Alexander disclosed nothing which varied the terms of the written agreement, nor anything which would have warranted a finding that the...