Weber v. Lockman

• Decision Date: 19 November 1902
• Citation: 66 Neb. 469,92 N.W. 591
• Parties: WEBER v. LOCKMAN ET AL.
• Court: Nebraska Supreme Court

66 Neb. 469

92 N.W. 591

WEBER

v.LOCKMAN ET AL.

Supreme Court of Nebraska.

Nov. 19, 1902.

Syllabus by the Court.

1. A master may be liable in damages caused by negligence committed by his servant while in the course of his employment, although the latter may be at the time acting without the knowledge, or contrary to the known wishes, of the former.

Commissioners' opinion. Department No. 3. Error to district court, Cedar county; Graves, Judge.

Action by Charles H. Lockman against Alois Weber, Sr., and another. Judgment for plaintiff, and defendant Weber brings error. Affirmed.

J. C. Robinson, for plaintiff in error.

R. J. Millard, C. H. Whitney, and Benjamin M. Weed, for defendant in error.

AMES, C.

This is a proceeding in error to review a judgment in an action for damages for personal injuries. The facts out of which the cause of action arose are substantially undisputed, and are these: The plaintiff in error, Alois Weber, Sr., was living upon and cultivating a farm upon which there was a herd of cattle belonging to him. As a part of the business thus being carried on, it was necessary, or desired, to drive the cattle to a place some five or six miles from home, and put them there in a pasture. There were employed upon the farm, besides the plaintiff in error, his son Alois, Jr., and a hired servant named Schweimer. At the breakfast table on a Sunday morning it was proposed to drive the animals to pasture on that day, so as to avoid interruption of work during the coming week, but the elder Weber objected to this course solely on account of the character of the day. There was no further discussion of the matter until about 2 o'clock in the afternoon, when Alois, Jr., and Schweimer mounted some horses, and, turning the cattle into the public highway, drove them to the designated place of destination. Weber, Sr., was at or shortly before this time in his house asleep, and did not know of the conduct of the young men until after they had departed from the premises with the cattle. After the animals had been turned into the pasture, Alois, Jr., abandoned the direct road home, and made a detour of about a mile for the purpose of seeing and visiting with some young men of his acquaintance. Owing to the delay thus occasioned, he did not resume his journey homeward until nightfall, when he did so accompanied by another young man, also on horseback. When he was within a mile and a half or two miles from home, and apparently upon the direct road thither, he had been overtaken by darkness, and, both horses having become unmanageable from fright or some other cause, ran rapidly along the road and down a hillside near the residence of the defendant in error, whom they encountered in the highway, and whom the horse ridden by Alois ran over, causing the injuries on account of which the judgment was recovered. The court left it to the jury to say--First, whether the accident was attributable solely to the negligence of Alois; and, second, whether, if so, such negligence should be imputed to the plaintiff in error as a master in the course...