Yellow Cab Co v. Nelson, (No. 16842.)

• Decision Date: 17 September 1926
• Docket Number: (No. 16842.)
• Citation: 35 Ga.App. 694,134 S.E. 822
• Parties: YELLOW CAB CO. v. NELSON.
• Court: Georgia Court of Appeals

35 Ga.App. 694

134 S.E. 822

YELLOW CAB CO.

v.NELSON.

(No. 16842.)

Court of Appeals of Georgia, Division No. 2.

Sept. 17, 1926.

Rehearing Denied Oct. 2, 1926.

(Syllabus by the Court.)

Error from City Court of Atlanta; H. M. Reid, Judge.

Suit by R. M. Nelson, Jr., by next friend, against the Yellow Cab Company. Judgment for plaintiff, and defendant brings error. Affirmed.

Dorsey, Shelton & Dorsey, C. W. Binns, and Sam D. Hewlett, all of Atlanta, for plaintiff in error.

Neufville & Neufville and Colquitt & Conyers, all of Atlanta, for defendant in error.

BELL, J. This was a suit against the Yellow Cab Company to recover damages for personal injury. The seven year old plaintiff was injured by a cab at an intersection of streets in the city of Atlanta. The complaint alleged that the cab was the property of the defendant and that it was being operated at the time by one of the defendant's servants. There were several specifications of negligence, including unlawful and excessive speed. The trial resulted in a verdict in favor of the plaintiff for $3,000. The defendant moved for a new trial, which the court refused, and the defendant excepted.

1. Counsel for the plaintiff in error contend that there was no sufficient evidence to establish the relation of master and servant as between the defendant and the person driving the cab at the time of the injury. The evidence showed that the vehicle was a yellow cab with the words "Yellow Cab" on the side of the door, also that it was of the kind commonly used by the defendant, and that such cabs were used by no other company in Atlanta at that time. There was testimony to the effect that the driver of the cab wore a yellow band around his cap, as was the custom of the regular drivers of this company. But, according to one witness, "There are two sets of drivers that have caps with yellow bands around them—Blackus and the Yellow Cab Company." Blackus had been enjoined from using such caps, though the injunction was probably not issued until after the plaintiff's injury. We think the evidence was sufficient to establish that the cab which struck the plaintiff was the defendant's property, and also that the driver was the defendant's servant, and thus to make a prima facie case in favor of the plaintiff, on the issue under discussion.

"Where a servant, who is employed for the special purpose of operating an automobile for the master, is found operating it in the usual manner such machines are operated, the presumption naturally arises that he is running the machine in the master's service. If he is not so running it, this fact is peculiarly within the knowledge of the master, and the burden is on him to overthrow this presumption by evidence which the law presumes he is in possession of."

See Fielder v. Davison, 139 Ga. 509 (6), 77 S. E. 618; Hotel Equipment Co. v. Liddell, 32 Ga. App. 590 (2), 124 S. E. 92., But it is said that the evidence disclosed that the yellow band around the cap was a badge of identity of the drivers of another company as well as of the defendant's drivers. Even so, when the defendant's ownership of the cab was shown, the jury could very reasonably infer that it was not in the possession of a driver of the competing company, but that the yellow band in the particular instance identified the servant of the defendant, or, in other words, that there was not a cross of drivers and cabs of the two companies on the occasion in question. Such a mixture was not probable. The defendant introduced no evidence.

2. The court did not err in failing to charge the jury that:

"The mere proof of the ownership of the cab which caused the injury is not sufficient of itself to establish prima facie that the car was being driven by a servant of the owner, about the owner's business, and within the scope of his employment."

Language almost identical was used by this court in Gillespie v. Mullally, 30 Ga. App. 118, 117 S. E. 98, but an examination of the entire opinion in that case will show that this expression was...