Kelton v. Fifer

• Decision Date: 21 December 1904
• Docket Number: 85-1904
• Citation: 26 Pa.Super. 603
• Parties: Kelton v. Fifer, Appellant
• Court: Pennsylvania Superior Court

26 Pa.Super. 603

Kelton v. Fifer, Appellant

No. 85-1904

Superior Court of Pennsylvania

December 21, 1904

Argued May 5, 1904

Appeal by defendant, from judgment of C.P. No. 2, Allegheny Co.-1901, No. 310, on verdict for plaintiff in case of J Frank Kelton and James W. Kelton, his minor son, v. Kasimer Fifer and John Campbell.

Trespass to recover damages for personal injuries. Before Rodgers, J.

The circumstances of the accident are stated in the opinion of the Superior Court.

The court refused binding instructions for defendant.

Verdict and judgment for James W. Kelton, the son, for $ 477, and for J. Frank Kelton, the father, $ 75.00.

Error assigned was in refusing binding instructions for defendant.

Affirmed.

T. L Gartner, with him James t. Buchanan, for appellant. -- The evidence was insufficient to submit to the jury: Howard Express Co. v. Wile, 64 Pa. 201; Cunningham v Smith, 70 Pa. 450; Hyatt v. Johnston, 91 Pa. 196; Snodgrass v. Bradley, 2 Grant 43.

J. M. Hunter, with him H.

Q. Walker, for appellees.-- It is only where there is no evidence from which the jury can properly find for the party on whom the burden of proof rests that the question should be withdrawn from the jury by a binding charge: Hyatt v. Johnston, 91 Pa. 196; Longenecker v. Penna. R. R. Co., 105 Pa. 328; Cover v. Manaway, 115 Pa. 338; McKnight v. Bell, 135 Pa. 358.

Before Rice, P. J., Beaver, Orlady, Smith, Porter, Morrison and Henderson, JJ.

OPINION

RICE, J.

The general rule that a master is responsible for an injury resulting from the negligence of his servant while driving the master's vehicle, provided the servant is at the time engaged in his master's business, is too well settled to require the citation of authorities. If the wagon is being driven by the servant, it may be inferred without other proof that the latter is engaged in the master's business, and is subject to his control. There are authorities which hold that when the plaintiff has suffered injury from the negligent management of a vehicle, such as boat, car or carriage, it is sufficient prima facie evidence that the negligence was imputable to the defendant, to show that he was the owner of the thing without proving affirmatively that the person in charge was the defendant's servant: 1 Shearman & Redfield on Negligence, section 158; Hershinger v. Penna. R. R. Co., 25 Pa.Super. 147; Joyce v. Capel, 8 C. & P. 370, 34 Eng. C. L. Rep. 433; Edgeworth v. Wood, 58 N.J.L. 463 (33 A. 940); Norris v. Kohler, 41 N.Y. 42. This principle or rule of evidence was recognized by us in Connor v. Penna. R. R. Co., 24 Pa.Super. 241, at page 244; but was held not to be applicable, because it appeared in the development of the plaintiff's case that the driver had leased the cab from the defendant company under an agreement in writing which was produced and identified.

The prima facie presumption that the person driving was doing so for the owner is of course stronger where the latter is in the vehicle. In an English case, where the question was whether the proper form of action was trespass or case, the court said: " There is no case militating against the position that where the owner of a carriage is sitting by the side of his servant, the act of the servant in driving is the act of the master, and the trespass of the servant is the trespass of the master. The reason is that the master is in immediate control over the servant, for the act here done was immediately injurious to the plaintiff, and it was the defendant's act; consequently, an action of trespass is the proper remedy:" Chandler v. Broughton, 2 L. J. Exchequer 25.

Nor do we regard it as essential to the establishment of the prima facie case that it be proved that the person whom the plaintiff seeks to hold liable for the negligence of the driver was the absolute owner of the conveyance. His responsibility for the management of the conveyance arises not from the fact of ownership, but from the fact that the person managing it was his servant or agent. Proof of ownership unexplained is simply presumptive evidence that the latter was acting in that capacity. A bailee, or person in possession or control of the conveyance, by whatever name he may be called, is as responsible for the negligence of his driver as if he were the owner, and proof of his possession and control is equally effective as prima facie evidence that the person driving was doing so for him.

Here the defendant was seated by the side of the driver, Campbell in a buggy being driven at a reckless speed along a borough street where men and children, attracted by a band that was playing, were congregated in considerable numbers. The plaintiff's evidence showed that they were racing with the driver of another vehicle, and that as they were attempting to pass him, the plaintiff, a child four years of age, who was crossing the street, was knocked to the ground by the buggy in which the defendant was seated and was run over and seriously injured. The fact of negligence was scarcely open to question; at any rate, it has been established by the verdict of the jury under appropriate instructions and is not now disputed. Was the defendant responsible? The court charged the jury that if, as he alleged, his wife was the owner of the horse and buggy, and Campbell hired them from her, or from the defendant as her agent, and the defendant was riding with Campbell upon the...