Fidelity & Casualty Co. v. Kansas City Rys. Co.

• Citation: 207 Mo. App. 137,231 S.W. 277
• Decision Date: 23 May 1921
• Docket Number: No. 14027.,14027.
• Parties: FIDELITY & CASUALTY CO. OF NEW YORK. v. KANSAS CITY RYS. CO.
• Court: Court of Appeal of Missouri (US)

231 S.W. 277

207 Mo. App. 137

FIDELITY & CASUALTY CO. OF NEW YORK. v. KANSAS CITY RYS. CO.

No. 14027.

Kansas City Court of Appeals. Missouri.

May 23, 1921.

Appeal from Circuit Court, Jackson County; Thomas B. Buckner, Judge.

Suit by the Fidelity & Casualty Company of New York against the Kansas City Railways Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Chas. N. Sadler, John E. Connors and E. E. Ball, all of Kansas City, for appellant.

Rollin E. Talbert, J. C. Rosenberger, and

W. G. Butts, all of Kansas City, for respondent,

BLAND, J.

This is a suit for damages to an automobile. There was a verdict and judgment for plaintiff in the sum of $404.96 and defendant has appealed.

The facts show that on April 13, 1918, an automobile driven by one Steffey who was in the general employment of the defendant as a chauffeur collided with an automobile owned and being driven west by one J. Cohn on the north side of Fifteenth street, a street running east and west in Kansas City, Mo. At the time of the collision Steffey was driving at a high rate of speed on the north and wrong side of said street, in an opposite direction to Cohn.

Steffey on the morning of the day in question, was called to defendant's office at Fifteenth street and Grand avenue, in Kansas City, Mo., and was directed to bring defendant's automobile which was in defendant's garage at Thirty-First and Cherry streets in said city, to that office. Steffey drove the car to defendant's office, where he called for defendant's paymaster and took him to Second street and Grand avenue. After waiting at the latter place for the paymaster to finish paying the men, Steffey took him back to the office at Fifteenth and Grand, where the paymaster was discharged. It was Steffey's duty to take the car back to the garage at Thirty-First and Cherry streets but he started out Fifteenth street for the purpose of stopping for his dinner on his way to the garage. When he reached a point about 50 feet west of Vine street, a street running north and south, and intersecting at right angles Fifteenth street, he was driving on the westbound car track, and came alongside of a truck which was to the south, and going somewhat slower in the same direction. The driver of the truck indicated that he was going to make a left-hand turn Into Vine street. Steffey was going too fast to stop, and testified that, in order to keep from striking the truck as it made the turn, he speeded up his car and turned it toward the north, in order to go around the truck. He collided with Cohn's automobile before he was able to return to the middle or south side of the street. The accident happened 25 feet east of Vine street, which was 50 feet wide. Steffey testified that he was going at the rate of 15 to 18 miles per hour, but plaintiff's testimony shows that he was going at the rate of from 20 to 30 miles per hour. Cohn's automobile was materially damaged. After the accident Cohn assigned to plaintiff, who had a policy of insurance upon the car, all his right to any cause of action that he might have against the defendant.

There are a number of specific allegations of negligence in the petition, one of which is founded on ordinance No. 38759 of Kansas City, section 20 of which is pleaded in the petition. Said section provides that every person operating a motor vehicle "shall drive the same in a careful and prudent manner, and at a rate of speed that shall not endanger the property of another or the life or limb of any person or persons, provided that driving in excess" of 20 miles per hour at the place of the collision "for a distance of more than two hundred feet shall be presumptive evidence of driving at a rate of speed which is not careful and prudent."

Defendant's first point is that its demurrer to the evidence should have been sustained, for the reason that there was a total failure of proof that Steffey was acting for the defendant, and within the scope of his employment, at the time of the collision. Plaintiff made out a prima facie case by showing that the automobile, at the time of the collision, was the property of defendant, and that Steffey was in its employ, such facts raising the presumption that Steffey was acting in the line of his employment, which presumption would take flight on the appearance In evidence of facts showing the contrary. Guthrie v. Holmes, 272 Mo. 215, 236, 198 S. W. 854, Ann. Cas. 1918D, 1123; Glassman v. Harry, 182 Mo. App. 304, 170 S. W. 403; Sharon v. Lambert, 142 Mo. App. 567, 121 S. W. 770. The question then presents itself as to whether this presumption in favor of plaintiff has been overcome.

The evidence shows that it was the intention of Steffey to stop for his dinner on his way to the garage. Courts do not take judicial notice of the streets of a city, their direction, or their relation to each other. Breckinridge v. Amer. Central Ins. Co., 87 Mo. 62; Vonkey v. City of St. Louis, 219 Mo. 37, 117 S. W. 733. There is nothing in the record to show that the place of the collision was not upon the direct route from defendant's office at Fifteenth street and Grand avenue to its garage at Thirty-First and Cherry streets. Nothing appears to indicate that at the time of the collision there was anything more than an unexecuted intention on Steffey's part to deviate from that route for the purpose of going to his dinner. The intention to deviate being unexecuted, and not yet having become operative, it might be said that at the time of the collision the automobile was being used in the business of defendant. Fitzgerald v. Boston & Northern Ry. Co., 214 Mass. 435, 101 N. E. 1085. But, assuming that there was an executed intention on the part of Steffey to deviate, a slight deviation from the direct route for the benefit of the driver would be a more incident, and not necessarily out of the line of his duty to his employer. From the evidence now before us there appears nothing otherwise than that the deviation, if any, was merely incidential and was not such as to take the driver outside of the scope of his employment.

Whether the servant has departed from the scope of his employment would depend upon the degree of deviation, and all the attending circumstances in some cases the deviation might be so slight as to authorize the court, as a matter of law, to declare that the servant is still executing the master's business. Where the decree of deviation is marked and unusual, such as where the chauffeur takes his employer's car on a frolic of his own, or...