Wollaston v. Park

• Decision Date: 13 June 1911
• Docket Number: 197-1910
• Citation: 47 Pa.Super. 90
• Parties: Wollaston v. Park, Appellant
• Court: Pennsylvania Superior Court

47 Pa.Super. 90

Wollaston v. Park, Appellant

No. 197-1910

Superior Court of Pennsylvania

June 13, 1911

Argued November 23, 1910

Appeal by defendant, from judgment of C.P. Chester Co., Jan. Term 1910, No. 14, on verdict for plaintiff in case of Edwin Wollaston v. Annie Lewis Park.

Trespass to recover damages for personal injuries. Before Hemphill, P J.

The facts are stated in the opinion of the Superior Court.

Verdict and judgment for plaintiff for $ 600. Defendant appealed.

Error assigned among others was in refusing binding instructions for defendant.

H. B Patton of Staake & Patton, with him A. M. Holding, for appellant. -- To hold a defendant responsible for the negligent driving of his guest, it must be shown, first, that he had the right to select the driver, and, second, that he had actual physical control over the way in which the vehicle was being driven: McMahen v. White, 30 Pa.Super 169.

It is immaterial that the hirer of the vehicle requested him to make the change. It would be immaterial if the hirer of the vehicle had ordered him to make the change: Richardson v. Ness, 53 Hun, 267.

J. Frank E. Hause, for appellee. -- 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: Kelton v. Fifer, 26 Pa.Super. 603.

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

OPINION

PORTER, J.

The defendant, on September 6, 1909, hired an automobile of Henry R. Hoopes, who sent the car in charge of an experienced driver, named Marshall, to her house. The duties of the driver, sent by the owner of the machine, were, " To drive that car anywhere Mrs. Park wanted to go, and drive it as to the instructions I gave him, as to speed, etc., . . . . not to violate the speed laws, and to be careful." This was the only testimony as to the terms of the bailment. The uncontradicted testimony established the following facts. Marshall, the driver for Hoopes, took the car to the house of the defendant and the defendant with her two daughters and two gentlemen guests entered the car, assigning one of the gentlemen named Glassburner to the front seat upon the left hand side of the car next to the driver, and instructed Marshall, the driver, to take the party to Wilmington, Delaware. Marshall proceeded as directed and after he had gone some distance defendant requested him " to let Mr. Glassburner take the car." Upon this request of the defendant Marshall stopped the car and exchanged seats with Glassburner. This put Glassburner in the place where he had absolute control of the operation of the car, with Marshall occupying the seat at the left side, where it was out of his power to regulate the manner in which the car was driven. Glassburner then drove the car for a considerable distance, when, in attempting to turn from one road into another which crossed it at right angles, he drove the car at a high rate of speed in a manner so negligent and reckless that he ran into plaintiff's vehicle which was proceeding in the same direction upon the road and inflicted the injuries to recover for which this action was brought. The principal question in the case is whether the defendant is liable to answer for the injuries caused by the negligence of Glassburner, who was operating the machine at her request. The plaintiff recovered a verdict and judgment in the court below and from that judgment the defendant appeals.

There was no conflict of evidence as to the facts bearing upon the question under consideration. The owner of the car had sent with it an experienced operator, and if the defendant had permitted that operator to continue in the control of the car and he had been negligent she would not have been liable for the consequences. The defendant requested Marshall, the driver provided by the owner, to withdraw from the position of driver and surrender control of the car and designated Glassburner to take his place, and her will prevailed. There was nothing in the evidence which would have warranted a finding that either Marshall or Glassburner had suggested that this change be made. The case was not one which involved the mere failure of this defendant to object to the servant of Hoopes yielding the control of the car to another, nor was it a case of a guest of the defendant volunteering to do something for her. The active interference of the defendant resulted in a change of drivers. There was no evidence from which a jury should have been permitted to infer that the trip to Wilmington was a joint undertaking of the defendant, Glassburner and the other members of the party. This defendant was the bailee of the car, Mr. Glassburner was merely her guest. He may have expected to enjoy a pleasant outing, but he had no control over the destination of their journey or the manner in which it was to be attained, and there is...