Ogland v. Detroit Edison Co.

Fead, J. About one o’clock in the afternoon of December 27, 1929, plaintiff, to board a street car, stepped from the sidewalk on Gratiot avenue in Detroit, between two automobiles parked about two and one-half feet apart. When she had taken a couple of steps the car ahead began to back; she tried to return to the sidewalk and was struck and injured. The claim of negligence was in violating an ordinance of the city which requires operators of cars, before backing, to ascertain that it can be done safely and to give unmistakable warning signals. Defendant moved for directed verdict, which was denied. Plaintiff had verdict and judgment. Defendant contends that no connection was shown between the driver of the car and defendant. There was testimony that the car had a sign in the window reading “Detroit Edison Company Service.” Harold Fisher was identified as the driver. He was an employee of defendant in the trouble department. He went from place to place on telephone instructions to locate and correct defects in service. He was on duty at the time the accident occurred, although he denied being in the neighborhood then. The jury found that he was present and caused the *585 injury, and, in the absence of any showing to the contrary, it could infer from the established facts that Fisher was acting within the scope of his employment with defendant. Burns v. Michigan Paint Co., 152 Mich. 613 (16 L. R. A. [N. S.] 816); Shamp v. Lambert, 142 Mo. App. 567 (121 S. W. 770). Plaintiff’s husband was permitted to testify that a few days after the accident he telephoned defendant’s office at the number stated in the telephone directory, a girl answered, he asked for the manager, a man talked with him and told him that the company had a report of the accident. The testimony was material as bearing upon the relation between Fisher and defendant, and its competency, without further identification of the “manager,” is established by Theisen v. Detroit Taxicab & Transfer Co., 200 Mich. 136 (L. R. A. 1918D, 715), where the subject is fully discussed. Defendant complains because the court instructed the jury that the question of contributory negligence was not in the case, as there was no evidence of contributory negligence. At no time during the trial did defendant claim there was a question of fact on the subject. Its only claim was that plaintiff was guilty of contributory negligence as a matter of law. It presented no request to charge. When the court had completed his charge, he asked whether there were further requests;»defendant suggested one, which was given, and no intimation was made that contributory negligence was an issue for the jury.. Under familiar rules, as defendant did not request a charge, there was no error in this respect. Judgment affirmed, with costs. McDonald, C. J., and Clark, Potter, Sharpe, North, Wiest, and Butzel, JJ., concurred.