Jones v. Hoge

• Decision Date: 25 November 1907
• Citation: 47 Wash. 663,92 P. 433
• Parties: JONES v. HOGE.
• Court: Washington Supreme Court

92 P. 433

47 Wash. 663

JONES v. HOGE.

Supreme Court of Washington

November 25, 1907

Appeal from Superior Court, King County; Arthur E. Griffin, Judge.

Action by Samuel Jones against James D. Hoge. From an order granting plaintiff a new trial, defendant appeals. Reversed and remanded.

Kerr & McCord, for appellant.

Jas. F McElroy and A. A. Booth, for respondent.

ROOT J.

Respondent commenced this action to recover damages for personal injuries sustained by reason of being run over by defendant's automobile, operated by one Barnes as chauffeur. The evidence showed that Barnes was employed by defendant to operate and care for his automobile, and to take the same to and from defendant's home whenever ordered so to do by himself or wife. The machine was kept at a public garage, and Barnes was authorized to take the same therefrom whenever appellant or wife so directed, and to do so without making any request of the owners of the garage. At the time of respondent's injury, Barnes had taken out the automobile without the knowledge or permission of either defendant or his wife, and was using the machine on an errand personal to himself. He had been advised that neither the defendant nor his wife required the machine that evening, and his errand was one with which his employer was in no manner concerned. At the close of the evidence at the trial, a challenge to the sufficiency of the evidence and a motion to withdraw the case from the jury and enter judgment for defendant was made and sustained by the court. Thereafter a motion for new trial was granted by the court solely upon the ground that the evidence tended to show that Barnes was not a competent and careful operator of an automobile, and was intrusted with its care, and, having by his negligence injured an innocent person, his employer was liable for damages.

It is contended by respondent that an automobile is a machine of such danger as to render the owner thereof liable for injuries caused thereby while operated by his chauffeur, and even though not engaged directly in his line of employment, if the master has made it possible for the chauffeur to take out and operate such machine at pleasure that the master is holden to employ only such chauffeurs as are competent and careful, and must be holden for damages occasioned by their incompetency or recklessness when making use of the machine, even though out of the line of employment; and, also, that in this case Barnes was within the apparent scope of his authority. We do not think the contentions can be upheld. Barnes was not using the machine to carry out any purpose for which he was employed. We do not think that an automobile can be placed in the same category as locomotives, gunpowder, dynamite, and similarly dangerous machines or agencies. It is true that the operation of this machine is attended with some dangers not common to the use of the ordinary vehicle, and we believe and have already held that those who operate these machines must be held to that degree of care which is commensurate with the dangers naturally incident to their use. Lampe v. Jacobson (Wash.) 90 P. 654. But we do not believe that the law would charge the owner of an automobile with a liability for damages caused by the operator thereof under the circumstances found here. In the case of Robinson v McNeil, 18 Wash. 163, 51 P. 355, this court held that, where a section foreman who had charge of a hand car which he used to travel over the road loaned the same to some boys, one of whom was thereby injured, the railway company was not liable, as the foreman was not authorized to permit the hand car to be used for such a purpose. Huddy, on the Law of Automobiles, p. 15, says this: 'The motor carriage is not to be classed with railroads, which, owing to their peculiar and dangerous character, are subject to legislation imposing many obligations on them which attach to no others. Certainly a motor vehicle is not a machine of danger when controlled by an intelligent, prudent driver. * * * As bearing on this question, it has been stated by authority that out of a total of 3,482 deaths reported to the coroner's office in the city of Chicago for the year 1905 only 5 were caused by automobiles. For every death caused by an automobile in the city of Chicago there were more than 70 deaths caused by railroad accidents. Twelve people were killed by wagons to every one who met death at the hands of an automobile.' And at page 95 the same author says: 'Where a chauffeur uses his employer's automobile for his own personal pleasure and contrary to authority, a party negligently injured by the car cannot hold the employer liable, since the operator of the vehicle was not at the time acting for his employer and within the scope of his employment. However, the chauffeur is liable in damages.' The case of Slater v. Advance Thresher Company, 97 Minn. 305, 107 N.W. 133, is one exactly in point. There an agent was furnished an automobile to be used in his principal's business whenever he desired. One day he took it out for a purpose personal to himself and distinct from his employer's business; and, while so operating it, the horses of the plaintiff were frightened by the agent's negligent management of the machine, and ran away, injuring plaintiff. The Supreme Court of Minnesota held that the owner of the automobile was not liable. The case is well considered, and many authorities bearing on the question are collated and discussed. Among other things the court said: 'It is elementary that the master is not liable for injuries occasioned to a third person by the negligence of his servant, while the latter is engaged in some act beyond the scope of his employment, for his own or the purposes of another, although he may be using the instrumentalities furnished him by the master with which to perform the ordinary duties of his employment, or, as expressed in Shear. & R. Neg. (3d Ed.) § 63, that, if the act complained of be committed by the servant while at liberty from the service of the master and while pursuing his own interests exclusively, there can be no question of the master's freedom from liability, even though the injury would not have been committed without the facilities afforded the servant by his relation to the master.

* * * The rule of law applicable to the care and protection of dangerous instrumentalities does not apply. That rule requires the master to exercise a proper degree of care to guard, control, and protect dangerous instrumentalities owned or operated by him, and, an injury occurring by reason of the improper use of such an instrumentality by a servant, though occasioned while not in the performance of his duty, the master is liable. But the principle on which liability is founded in such cases is the failure of the master to properly keep within his control such dangerous agencies. The rule is illustrated in Mattson v. Minnesota & N.W. R Co., 95 Minn. 477, 104 N.W. 443, 70 L. R. A. 503, 111 Am. St. Rep. 483.' See, also, Bogue v. Bennett, 156 Ind. 478, 60 N.E. 143, 83 Am. St. Rep. 212; Macomber v. Nichols, 34 Mich. 212, 22 Am. Rep. 522; Mason v. West, 61 A.D. 40, 70 N.Y.S. 478; Oxford v. Peter, 25 Ill. 134; Campbell v. Providence, 9 R. I. 162; Atchison v. Randall, 40 Kan. 421, 19 P. 783; Brenner v. Ford, 116 La. 550, 40 So. 894; Bowler v. O'Connell, 162 Mass. 319, 38 N.E. 498, 27 L. R. A. 175, 44 Am. St. Rep. 359; Maddox v. Brown, 71 Me. 432, 36 Am. Rep. 336; Fairchild v. Railroad Co., 60 Miss. 931, 45 Am. Rep. 427; Patterson v. Kates (C. C.) 152 F. 481; Ware v. Canal Co., 15 La. 169, 35 Am. Dec. 192; Engel v. Eureka Club, 137 N.Y. 100, 32 N.E. 1052, 33 Am. St. Rep. 692; Higgins v. Telegraph Co., 156 N.Y. 75, 50 N.E. 500, 66 Am. St. Rep. 537; King v. Railroad Co., 66 N.Y. 181, 23 Am. Rep. 37; Railroad Co. v. Shields, 47 Ohio St. 387, 24 N.E. 658, 8 L. R. A. 464, 21 Am. St. Rep. 840; Quigley v. Thompson, 211 Pa. 107, 60 A. 506; McCarty v. Trimmins, 178 Mass. 378, 59 N.E. 1039, 86 Am. St. Rep. 490; 20 A. &...