Drakenberg v. Knight

Jones, J. The evidence is undisputed that although it was the duty of defendant Hale to pass to the right of the intersection of the two streets he passed to the left; thus cutting the comer and violating sub. 1, sec. 1636 — 49b, Stats. No excuse for this appears in the testimony, and it is plain that Hale was guilty of negligence. Haggerty v. Rain, 177 Wis. 374, 186 N. W. 1017. It is contended, however, by defendants’ counsel that the plaintiff was guilty of negligence contributing to the injury and that the negligence of defendant was not the proximate cause. The principal ground assigned for this claim is that the plaintiff ought to have continued on his way while crossing the street instead of turning back as the car approached him.’ Defendants’ counsel argue that if plaintiff had not turned back the car would have passed five or six feet behind him, while plaintiff’s counsel argue that if he had [390] not turned back there was danger of his being crushed between defendant’s car and another parked on the west side of Second street. There were some conflicts in the evidence as to the speed of the car. There was evidence on the part of defendants that the car was going from eight to ten miles an hour, and on the part of plaintiff that the rate of speed was as high as fifteen miles. It was agreed that there was quite an ascent on Second street, and evidently the car was not going at' a low speed when the turn was made. There was evidence that the plaintiff was dragged from eight to ten feet after the collision. No warning was given of the approach of the car. When the danger became imminent, both parties evidently sought to avoid the accident. It may be that in retreating plaintiff did not adopt the wisest course, but it does not necessarily follow that he was therefore guilty of contributory negligence. He was not bound to anticipate that a car would approach on the wrong side of the street. The case wa.s submitted to the jury on instructions to which there seems no valid objection. They found that there was no contributory negligence and that the negligence of defendant was the proximate cause of the injury. Their decision was approved by the trial court, and we cannot say as a matter of law that their finding was not supported by credible evidence. It is clear that a sudden emergency arose, and the language of Mr. Justice Vinje in another case is quite pertinent : v “It is clear that what may be termed an emergency situation existed or was thought to exist by both parties when plaintiff 'first moved north in front of defendant’s automobile. Under such circumstances a person is not held- to the strict exercise of ordinary care, for there is no time for the exercise of judgment and deliberate action upon it. The evidence showed that from the time defendant first saw [391] plaintiff till she was struck not more than ten seconds elapsed. Less than half of this was taken up by the attempts of each to avoid the other. In such situations action is instinctive rather than deliberate, and for that reason a failure to take the best means of escape is not necessarily negligence.” Parkes v. Lindenmann, 161 Wis. 101, 108, 151 N. W. 787. Defendants’ counsel rely on other language used in the case just cited, but in various respects not necessary to enumerate the two cases are easily distinguishable. It is urged by defendants’ counsel that the judgment should be reversed as to Knight because, as they claim, the car was not being used in his business at the time of the accident and because it was being used without his knowledge or consent. To sustain this contention they cite Gewanski v. Ellszworth, 166 Wis. 250, 164 N. W. 996, and Steffen v. McNaughton, 142 Wis. 49, 124 N. W. 1016. In each of these cases the testimony was that the employees of defendants were using cars solely for their own convenience. It was argued in those cases that the work of the master was facilitated by the use which was made of the cars by the employees, since such use would tend to promote more friendly relations and cause more faithful performance of duty and thus promote the interests of the employers. The court held that such supposed advantage would not create liability for acts clearly beyond the scope of employment. In the case before us there is quite a different situation. It is undisputed that on the afternoon of the day in question Hale, in going and returning from his work, was using the car not in his own business but in that of the employer. In carrying a heavy chain it was not unreasonable that the car should be used. On account of absence from the city Knight had no need or occasion to use the car. Hale had often driven the automobile in his employer’s business and for his own convenience when it was not needed by his employer and when no express consent had been given. He had every reason to suppose that no objection would be [392] made to his conduct in thus using the car in this instance in the business of his employer, and father-in-law. Notwithstanding the accident and the irritation it might have caused, no complaint was made when Knight learned the facts. Defendants’ counsel claim that the employment of Hale ceased when he returned to the city; that on his return he should have placed the car in the garage; that the accident was the result of going to the postoffice with the car; and that this deviation was purely on the business of Hale and beyond the scope of his employment. The postoffice was only about three blocks from the place of residence of the defendants. We cannot hold as a matter of law that in going these few blocks to' get the mail of Knight as well as his own Hate was acting outside the scope of his employment. On this branch of the case the following recent cases are directly in point: Thomas v. Lockwood Oil Co. 174 Wis. 486, 182 N. W. 841; Parker v. Barber, 177 Wis. 588, 188 N. W. 193; Smith v. Yellow Cab Co. 173 Wis. 33, 180 N. W. 125. Although both defendants testified that Hale had no authority fi> take the car except by special permission and that no such permission had been given on that day, there were numerous circumstances which the jury.could properly consider in this connection. Among these facts were the following: the relationship and intimacy between the defendants and their families; the frequent and continued use of the car by Hale on other occasions, both for his own convenience and in the business of the owner; the fact that on the afternoon in question the owner was absent and had no personal use for the car; that on that afternoon there seemed to be good reason for its use in the business, and that it was so used; and the fact fairly inferred from the testimony that it was only when Knight wanted the car for his own use that Hale was not permitted to use it. It is true that it was necessary for the plaintiff to establish that the injury occurred in the scope of Hale’s employ [393] ment and that the car was then used with Knight’s consent. The jury were not bound to accept as conclusive the denials of authority by the interested parties, qualified as they were by their, other testimony, and we cannot say as a matter of law that there was not credible evidence to meet both of the conditions of liability. The claim was made by defendants’ counsel that the damages were excessive. We do not consider that the judgment should be disturbed on that ground. By the Court. — Judgment affirmed.