Jones v. Belt

• Decision Date: 01 May 1884
• Citation: 32 A. 723,13 Del. 562
• Court: Delaware Superior Court
• Parties: ANDREW W. JONES [*] v. Z. JAMES BELT

32 A. 723

13 Del. 562

ANDREW W. JONES ^[*] v. Z. JAMES BELT

Superior Court of Delaware, New Castle

May 1, 1884

THIS was an action against a master for damages for personal injuries, alleged to have been caused by the negligence of his servant while using the team of the master on the public highway.

H. H Ward, for plaintiff.

W. C Spruance, for defendant.

OPINION

COMEGYS, C. J., charging the jury:

Gentlemen of the jury:--

It is proper that we should, before we deal with this particular case on trial before you, give you information upon the subject of the liability of masters for the misconduct of their servants--of employers for that of those they employ. For all injurious acts to others resulting from the ignorance, unskillfulness, or negligence of persons in the service of others, those who employ them are liable, provided they were then engaged in the business of their employers. But for any wilful act of the person employed--that is, act outside, and not within the line of his duty--the employer is not liable. For example: most of you are farmers, and hire men to work for you. Having occasion to send a man with a team to market or otherwise, should he prove to be an ignorant, unskillful, or negligent driver and by reason of such unfitness for the service upon which he was sent by you, a collision with some other team or vehicle, the driver of which was not in fault at the time, should take place and damage ensue, you would be liable for such damage--upon the ground that a person who employs another to act for him as his servant or employe (using a convenient term) impliedly engages, so far as the protection of others from injury by him is concerned, that he is reasonably well qualified for such service and will do his duty therein. No man who undertakes to carry on, or transact any business (to put the matter in another form) can escape personal liability for an injury committed by a servant in the course of his employment, upon any plea that the act or omission from which the injury arose, was that of his servant merely. It may be such entirely, and yet the master will be responsible for the consequences of it to another.

Applying this law to the facts of the case we say, that the act of the servant, Frame, in leaving the defendant's horse in the street unhitched or otherwise secured, and without anyone to watch it while he went into the yard to obtain a box to be loaded into it, and was absent long enough for the horse to walk into and down Market street, was an act of negligence on the part of that servant, for which the master, the defendant here, is liable to respond in damages to the plaintiff if the facts of his case show him entitled to take advantage of such liability. It appears by an ordinance of the city (page 125 of the collection of them) that all drivers of vehicles, such as Frame was, shall, unless they have hold of the reins or lines, be sufficiently near to their horses, etc., to control them and prevent accident, under a penalty provided by it. This was to make the driver liable; but being a public ordinance, and, in contemplation of law, known to the citizens, and creating an offence by prescribing a penalty for doing an act, it must, in all reason, be taken as full notice to the defendant that his driver must not lose the control of horse, as it appears by the proof on both sides before you he did. Then you have before you to begin with, a case of the breach of the local law of the city. The undisputed facts, indeed these shown by the defendant, are, that the driver had left his horse unhitched and unrestrained by the weight and attachment to be fastened to the bridle, which he carried in his wagon, and as he states used elsewhere, and that the animal deliberately turned the wagon in the direction of Market street, and walked off to that thoroughfare, and down it some distance before the driver discovered his departure, which even then was not until his employer had excited his attention by moving to close the yard gate. It cannot then be said that the driver was sufficiently near the horse to control him. If he were not, and did not do it, in either case he was guilty of negligence in the performance of duty--how good soever his character as a good and careful sevant may be--and the defendant must be held liable for any consequences arising from such negligence. And, as the maintenance of this action does not depend upon the bad character of the man or horse, the proof as to the good character of the man as a servant or of the horse as a sober, gentle horse, is not to be weighed by you against positive neglect on the part of the servant of the defendant, if you find such to have existed. When I say to you that disobedience of a city ordinance is unquestionably, to say the least of it, inexcusable if not wilful negligence; and also that, without such ordinance, allowing a horse to be unattended in the street of a city by anyone able at the time to prevent his movements if he attempted to make any, is also such negligence; you will perceive why it is that the defendant in his action does not rest his case upon the question of diligence or absence of negligence on his part, but upon what he conceives to be the law of this State--that in a claim for damages, say from collision, if it can be shown that the plaintiff, by his own negligence or want of care, contributed to that which caused the injury of which he complains, he cannot recover.

Pursuing further the evidence in the case, we find that the servant Frame had no knowledge that the horse had gone away from his stand, where he had been left by him, before he had traveled from Sixth street, opposite the yard door at the back of the whole premises of the defendant, out into Market street and was out of sight, until the defendant moved to close the yard gate. Then the servant found he had gone away, and went in pursuit of him. Before this, however, a colored man had gone to the defendant's store (at the northwest corner of Sixth and Market) and given information that the horse was loose and traveling down the street. When this intelligence was received, a clerk of the defendant went in pursuit also of the horse, and though he made the fastest run he could along the sidewalk (which was icy more or less) he did not get up with him until the collision happened, the consequences of which have been laid before you. As the horse by the proof on both sides walked very slow, he must have been some time at large before it was known. No effort seems to have been made by anyone to stop the horse except that the clerk when he reached Fifth street called to him to do so; but no outcry beyond that of one or two expressions of alarm at the impending peril, one of which proceeded from the superintendent of the Arnoux Electric Light Company, a corporation doing business here whose servant at the time the plaintiff was. The horse is proved to have been proceeding down Market street on the west track of the street car road in a very leisurely manner and nobody offered to stop him, nor is there evidence that either the clerk or the servant called upon anyone to stop him. These seem to be the facts down to the period when the horse crossed Fifth street on his way down Market.

When the horse, with the wagon to which he was geared, had passed across Fifth street going down, the latter came in collision with a ladder upon which the plaintiff stood. He was there in the course of his employment, by and under the orders of the Arnoux Electric Light Company, replenishing one of their lamps suspended upon a cable across the street and some 14 or 15 feet above it, supplied with others lower down the street in pursuance of a contract with parties on that street. This lamp hung over the middle of Market street a short distance below Fifth street, and was suspended as the others were, from a line supported by the cable, which line was run through pulleys, for convenience of cleaning the lamps without ascending in the street to the lamp itself. The ladder on which the...