Elliott v. O'Rourke

Vincent, J. Tliis is an action of trespass on the case for negligence brought to recover damages for personal injuries alleged to have been sustained by the plaintiff by being struck by the defendant’s automobile. The accident happened on Broad Street in the city of Providence. The plaintiff was standing in the street waiting for an approaching car. She had come from the easterly side of Broad Street and was about to take a car on the easterly track which was proceeding in a northerly direction or toward the center of the city. ■ While standing in this position she was run down by the defendant’s automobile. At the time of the accident the automobile was being operated by one Sydney A. McMillan, who was its sole occupant. The plaintiff testified that before stepping off the curbing she looked in both directions but saw no automobile; that it was raining, but she had taken down her umbrella, being about to board the car; that she received no warning of the .approach of the automobile and was not aware of its proximity until it struck her. The jury returned a verdict for the plaintiff and assessed damages in the sum of of $500. The defendant’s motion for a new trial was denied by the trial court. The defendant’s bill of exceptions alleges two errors on the part of the trial court: (1) The denial of her motion to direct a verdict in her favor on the ground that the operator of the automobile was not in the employ of the defendant at the time of the accident, but was engaged on an independent mission; and (2) the denial of the defendant’s motion for a new trial. McMillan was a student in the Technical High School; he held a chauffeur’s license and had been accustomed, for some time, to drive his father’s automobile. Mrs. O’Rourke, the defendant, considered him to be a careful *189 driver and be had driven her automobile on several occasions prior to tbe day of tbe accident. For these services be received no compensation. They were rendered in a spirit of friendly accommodation, be being on terms of sociability with tbe family. On tbe day of tbe accident McMillan called at tbe defendant’s home in tbe early evening and was requested by her to take her for a drive in tbe automobile which was then standing at tbe door. McMillan expressed bis willingness to comply with tbe defendant’s request provided that be could first go home and inform bis father and obtain bis consent, whereupon tbe defendant told him that be could, if be wished, take tbe automobile for that purpose. He took the automobile and it was on tbe way back from bis father’s bouse that tbe accident occurred. (1) Tbe defendant contends that these facts show that McMillan was engaged upon an independent and personal mission and not as tbe servant or agent of tbe defendant, and therefore it was error on tbe part of tbe trial court to deny her motion to direct a verdict in her favor. „We cannot accept this contention of tbe defendant. She suggested and offered to McMillan tbe use of her automobile for tbe purpose of seeing bis father and obtaining bis consent without which be would have' been unable to render her tbe assistance and service which she desired. Not only did McMillan make use of the defendant’s automobile at her suggestion and with her approval, but tbe trip in its purpose was, under tbe circumstances, necessarily preliminary to tbe ride which tbe defendant desired and proposed to take. It was for her benefit, and in that respect widely differs from cases where a chauffeur, for bis own purposes, deviates from bis route or extends bis trip beyond tbe point required in tbe discharge of his duty to his employer. Tbe defendant cites two cases which support tbe proposition that tbe owner of a horse and carriage or tbe owner *190 of an automobile is not responsible for damages arising from the carelessness of a borrower who is using the same for his own purposes. Herlihy v. Smith, 116 Mass. 265, and Cunningham v. Castle, 127 N. Y. App. Div. 580. Our conclusion being that McMillan was not a borrower but was acting as the servant or agent of the defendant and for her benefit, these cases are not applicable to the case before ns. (2) The defendant states in her brief that there are but two questions which she desires to press. One of these questions we have already discussed. The other question is, “Was the plaintiff, on her own statement, clearly guilty of contributory negligence? ” We assume, from the form in which the question is presented, that the defendant means, was the plaintiff guilty of contributory negligence as a matter of law? We do not think that she was. She testifies that before leaving the curbstone she looked in both directions and saw no vehicle approaching and that she heard no warning and was unaware of the presence of the automobile until it struck her. She was on the side of the track from which passengers were expected to board the cars and she had lowered her umbrella in preparation for stepping upon the car which was almost beside her. Upon this question the defendant cites the case of Dimuria v. Seattle Transfer Co., 50 Wash. 633. In that case the plaintiff held an umbrella over his head in such a position as to prevent his seeing an approaching team, and in that manner attempted to cross the street without looking in either direction before or after he started to cross. The facts differ materially from those of the case before us. If there was any question of contributory negligence in the case at bar, it was a question for the jury. The1 jury have rendered a verdict for the plaintiff which has *191 been approved by the trial court and we see no reason for disturbing it. Edward E. Ziegler, for plaintiff. Cushing, Carroll & McCartin, for defendant. Tlie defendant’s exceptions are overruled and the case is remitted to the Superior Court with direction to enter judgment for the plaintiff on the verdict.