Fidelity & Casualty Company of New York v. The Kansas City Railways Company
| Decision Date | 23 May 1921 |
| Citation | 231 S.W. 277,207 Mo.App. 137 |
| Parties | FIDELITY & CASUALTY COMPANY OF NEW YORK, Respondent, v. THE KANSAS CITY RAILWAYS COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from the Circuit Court of Jackson County.--Hon. Thos. B Buckner, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
Rollin E. Talbert, J. C. Rosenberger and W. G. Butts for respondent.
Chas N. Sadler, E. E. Ball and John E. Connors for appellant.
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, Missouri. 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 15th street and Grand Avenue, in Kansas City, Missouri, and was directed to bring defendant's automobile, which was in defendant's garage at 31st 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 15th and Grand where the paymaster was discharged. It was Steffey's duty to take the car back to the garage at 31st 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 west-bound 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 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 be 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 26 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; Glassman v. Harry, 182 Mo.App. 304, 170 S.W. 403; Shamp 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 t S. 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 15th street and Grand avenue to its garage at 31st 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 mere 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 incidental 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 on a "joy ride," the court as a matter of law would declare that he has departed from the scope of his employment, such as was done in the case of Guthrie v. Holmes, supra. The cases falling between these extremes will be regarded as involving a question of fact to be left to the jury. Defendant should be well satisfied in this case...
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