Ferguson v. Winter

• Decision Date: 25 June 1915
• Docket Number: 2716
• Citation: 46 Utah 321,150 P. 299
• Court: Utah Supreme Court
• Parties: FERGUSON v. WINTER

150 P. 299

46 Utah 321

FERGUSON v. WINTER

No. 2716

Supreme Court of Utah

June 25, 1915

Appeal from District Court, Third District; Hon. C. W. Morse, Judge.

Action by John B. Ferguson against A. E. Winter, doing business under the name and style of the Utah Packing Company.

Judgment for defendant. Plaintiff appeals.

AFFIRMED.

Powers & Riter for appellant.

W. R Hutchinson for respondent.

FRICK J. STRAUP, C. J., and McCARTY, J., concur.

OPINION

FRICK J.

This action was brought by the plaintiff to recover damages for personal injuries which he alleged he sustained through the negligence of one of the defendant's servants while driving one of the latter's teams and delivery wagon. The plaintiff alleged that the defendant was engaged in the--"meat-packing business under the name and style of Utah Packing Company and in connection therewith drove delivery wagons and other vehicles over and across the streets of Salt Lake City."

The plaintiff further alleged that he was employed by Salt Lake City as a street cleaner or street sweeper, and that he was injured through the negligence of one of defendant's servants while engaged in driving one of defendant's delivery wagons on one of the streets aforesaid. The allegations of negligence are sufficient and are not assailed. The defendant in his answer admitted that portion of the complaint we have quoted above, and denied all the other allegations therein contained. At the trial the plaintiff, in substance, proved that on a certain day, while he was engaged in cleaning the streets, a young man rapidly drove a team and delivery wagon on the street, and in passing the plaintiff the young man carelessly drove the wagon against the instrumentality used by the plaintiff, and caused the same to strike and injure him; that on the sides of the wagon driven by the young man were painted the words or sign "Utah Packing Company;" that plaintiff frequently had seen the same wagon, or similar ones, driven on the streets of Salt Lake City with said sign painted on them; that after the injury he saw the wagon with the sign painted thereon standing "at the Utah Packing Company's place of business." He also testified:

"I saw the same driver down there working at the Utah Packing Company's place of business."

That is, after the accident--how long thereafter is not shown--the plaintiff saw the wagon which he claims injured him as aforesaid and the driver thereof at the place of business of the defendant. This, in substance, constitutes all the evidence produced by the plaintiff respecting the ownership of the wagon and the purpose for which it was being used at the time of the accident, including the proof of agency of the driver. Upon the foregoing evidence both parties rested and the defendant requested the court to direct the jury to return a verdict in his favor upon the grounds: (1) That the plaintiff had failed to prove the ownership of the team and wagon; and (2) that he had also failed to prove that the driver was the agent or servant of the defendant, or that at the time of the accident he was engaged in the course of his employment. The court granted the request, and directed the jury to return a verdict for the defendant, which was done, and judgment was entered accordingly in favor of the defendant.

The plaintiff appeals, and asks us to reverse the judgment for the reason that the court erred in directing the jury to return a verdict for the defendant, and for the further reason that the court erred in not submitting the case to the jury upon the evidence. We think that the proof was sufficient to take the case to the jury upon the question of the ownership of the wagon. To that effect are the cases cited by appellant's counsel. See Pittsburgh, Ft. W & C. Ry. v. Callaghan, 157 Ill. 406, 41 N.E. 909; Edgeworth v. Wood, 58 N.J.L. 463, 33 A. 940; Norris v. Kohler, 41 N.Y. 42. That was, however, not all that the plaintiff was required to prove to make a prima facie case against the defendant, in view of the fact that the plaintiff affirmatively proved that the team and wagon in question were not driven by, and were not under the control of, the defendant at the time the accident occurred, but were, as alleged, in the complaint, under the control of a third person. The plaintiff was thus required to produce some evidence, either direct or inferential, that the driver was the servant of the defendant, and that at the time of the accident he was acting in the course of...