Solomon vs. Reymer.

Negligence Automobiles—Employer's Business-Liability for Chauffeur's Acts.

Plaintiff's minor son was killed through the negligence of defendant's chauffeur, who had started on defendant's business, but was found by the jury to have abandoned his errand and gone on an expedition of his own in no way connected with his duties. The accident happened when he was returning the automobile to the garage and to which it was his duty to return it. Verdict for defendant, and on motion for new trial, the question was whether having abandoned his errand, the chauffeur would be resuming it on his way to the garage so as to make his employer liable.

Held: That the chauffeur was on his own business at the time of the accident even though his purpose then was to return the car to the garage. New trial refused.

Motion for New Trial. No. 2319 July Term, 1913. C. P. Allegheny County.

Leonard S. Levin, for plaintiff.

Dalzell, Fisher & Hawkins, for defendant.

MACFARLANE, J., November 23, 1915.-The plaintiff's minor son was killed through the negligence of a chauffeur, employed by the defendant, who had gone on the defendant's business but was found by the jury to have abandoned his errand and gone on an expedition of his own in no way connected with his duties, but on the contrary opposed to them; but, the accident happened when he was returning the car to the garage where it was kept and to which it was his duty to return it. The record raises the question whether an employee, having abandoned his errand, would be resuming it on his way to the garage so as to make his employer liable.

The chauffeur, Clay, started with the car from the garage at Morewood and Centre Avenues to go to the Iron City Spring Works, at or near Thirtythird and Smallman Streets, in obedience to her order to there have some repairs made. He went west on the Grant Boulevard, crossed Thirty-third Street, came to the lower part of the city where he then turned and came back by the boulevard to Thirty-third Street, and went down it, arriving at the Spring Works at about half past three or four-o'clock in the afternoon. From there he went to a blacksmith shop at or near Forty-fourth and Butler Streets, this being a necessary part of his errand. When the repairs were made, it was then his duty to return the car to the garage, to do which he had a choice of routes; either returning by Liberty or Penn westward to Thirty-third Street, and then eastward by Thirty-third and Grant Boulevard to Morewood, or, by way of Forty-fourth or Forty-fifth Streets by a more direct route practically southward to the garage. He left the blacksmith shop at about five o'clock, went down Penn Avenue or Liberty Street passed Thirty-third Street and continued westward passing Grant Street where, by turning out Grant, he had a direct route eastward along the boulevard to the garage. Instead of taking this, he continued to the Federal Street bridge (formerly Sixth Street), went northwardly to the North Side (formerly the City of Allegheny), first stopping a time on the bridge to view the flood in the river. He and a friend, who was with him, had had a drink of brandy near the blacksmith shop, and after their arrival on the North Side got a drink of beer in a saloon there remaining not more than ten minutes. They then returned by Federal Street, stopped on the bridge to look at the flood, then came eastwardly along Fifth Avenue and stopped at a cigar store about ten minutes, and continued out Fifth Avenue,, stopped and had another drink, remaining ten or fifteen minutes, and then continued until they struck the boy at about 7:30 or 7:15 P. M. The place of the

Solomon vs. Reymer.

accident was on the road to the garage, and was not on either of the routes first referred to of which he had the choice in a direct return from the blacksmith shop.

The jury was instructed that there was a difference between a deviation from the errand of the employer and an abandonment of the employer's work. That if it was a mere deviation the defendant was liable, but if it was an abandonment she was not. That if he had abandoned his employment he was not on her errand at the time he struck the boy and although he was then returning the car to the garage he was not on her business. After they retired they asked further instructions as follows: "If the jury comes to the conclusion that the chauffeur left the errand of the defendant in crossing to Allegheny, would he be resuming the errand of the defendant on his way to the garage?" to which the answer was, "No, he would not." The verdict was for the defendant.

From the map in evidence, it was plain that he could have returned from the blacksmith shop to the garage in perhaps less than a half hour and that the trip to the North Side was in an opposite direction from the proper route after he reached Thirty-third Street, and the finding of the jury was amply justified. The journey was entirely for the chauffeur's own pleasure, and we cannot see that he had resumed his duty in this case any more than he could be said to have done so had he taken a "joy" ride to some neighboring town and the accident had happened when he was about to enter the garage on his return. It is not a case of a mere delay in his return, such as before the court in Blaker vs. Phila. Electric Co., 60 Pa., Superior, 56 (Advance Rep., September 24, 1915), nor is it a case of a mere deviation similar to Luckett vs. Reighard, 248 Pa., 24. He was not combining his employer's business with his own.

Where it is a mere deviation, the employee may resume the duties of his employment and render his master liable. When the object of a temporary departure has been accomplished and the servant re-engages and discharges his duties, the responsibility attaches, and the mere fact that the deviation was for a servant's personal enterprise or pleasure does not affect it.

Our conclusion is that the chauffeur was on his own business at the time of the accident even though his purpose then was to return the car to the garage, and that the motion for a new trial be overruled.

ORDER

Now, November 23, 1915, new trial refused.

Judgment

Vandling vs. Pittsburgh Railways Company.

-Non-Pros-Delay-Trial—Neglect of Counsel.

An action to recover damages for personal injuries was brought September 2, 1905. The case was postponed for various reasons and finally was placed on the weekly trial list late in 1915, when the defendant moved for a judgment of non-pros. on account of plaintiff's delay in bringing the case to trial.

Held: That when a plaintiff places his case in the hands of reputable counsel, he will not be turned out of court, where it appears that the delay was almost entirely on account of the neglect or oversight of his counsel. Motion refused.

Rule for Abatement and Non Pros. No. 302 November Term, 1905. C. P. Allegheny County.

Marron & McGirr, for plaintiff.

Burleigh, Gray & Challener, for defendant.

HAYMAKER, J., December 9, 1915. This case being on the weekly trial list the defendant asks us to abate the suit and enter judgment of non pros on account of plaintiff's delay in bringing the case to trial.

The action is to recover damages for personal injuries in an accident that occurred on May 30, 1905. The suit was brought September 2, 1905; a statement was filed on the 17th of November following; the defendant's plea was filed on the 12th of the following December, and on the same day plaintiff filed his praecipe for the issue docket. On September 25, 1908, being the third call of the list, the case was continued by the Court at request of plaintiff's counsel, on account of the illness of plaintiff. According to the records nothing further was done until December 11, 1914, when plaintiff filed his praecipe for Issue Docket, and the case now appears on Trial List 24, and is on the present week's trial list. Defendant alleges that, owing to the lapse of time, it supposed the action had been abandoned; that in the meantime it had relaxed its vigilence; that all the witnesses of defendant had either died or removed from their former residences; and that it believes and avers that it would be impossible, therefore, to prepare the case for trial.

The plaintiff filed his answer in which he alleges, inter alia, that when the case was called for trial on September 25th, 1908, he was suffering from an attack of erysipelas, for which reason it was continued by consent of defendant; that after recovering he inquired of his counsel, John Marron, Esq., from time to time, regarding the case and was told that it would not be reached for a couple of years; that after the death of Mr. Marron he called to see his partner about the case, when it was discovered that Mr. Marron had neglected to file a praecipe for the Issue Docket after the continuance of September 25, 1908; that it was then, December 11, 1914, placed on the Issue Docket and is now reached for trial; that defendant's witnesses have not died or removed; that he, plaintiff, has been always anxious and willing to try the case; that he was informed by letter from Mr. Marron of October, 1910, that the case would probably be reached in two years thereafter; that in addition to the attack of erysipelas he had typhoid fever from September to December, 1912, and in 1913, he had an attack of ptomaine poisoning that incapacitated him for some two months or more, and that the delay was owing entirely to the neglect of his counsel.

It appears that within about three months after suit was brought the case was at issue. At that time we were about three years behind in the trial of cases, and this is borne out by the fact that the case was first put at issue on December 12th, 1905, and was on the trial list in September, 1908, when it was continued. Had it again been placed on the Issue Docket at the time of the continuance it would have been reached probably in the Fall

Vandling vs. Pittsburgh Railways Company.

of 1911, up to which time it cannot be said that the plaintiff was responsible for the delay. On October 7, 1910, the plaintiff wrote his counsel about the case, and four days later he was informed in a letter fom his counsel that his case would probably be reached two years thereafter, or October, 1912. The plaintiff cannot be blamed for waiting the time suggested in the letter of his counsel, nor can it be charged against him that during all that time his case has not been placed upon the issue Docket. It could be said that the plaintiff was negligent in the matter only after 1912, but his counsel died about two years ago, and this may have been the cause of some delay on the part of plaintiff. When a plaintiff places his case in the hands of reputable counsel we are not disposed to turn him out of Court where it appears that the delay was almost entirely on account of the neglect or oversight of his counsel. Therefore, the motion is refused and petition dismissed.

McCreery & Company vs. Pittsburgh Railways Company.

Negligence-Auto Truck-Street Car-Collision.

Plaintiff's automobile truck was stopped in the middle of a square between the rail of a street car track and the curb. The night was dark and rainy. The driver testified that he got off and after examining his machine, thought it was clear of the car track. A short time later a street car ran into and damaged the truck. The motorman testified that it was very dark, that he saw the truck ahead, but thought it was clear of the track.

Held: That if the driver of the truck thought the truck was clear of the track, the motorman ought not to be expected to reach a different conclusion, and judgment for defendant n. o. v.

In re motions ex parte plaintiff for a new trial and for judgment n. o. v.; in re motion ex parte defendant for judgment n. o. v. No. 2198 April Term, 1913. C. P. Allegheny County.

Evans, Noble & Evans, for plaintiff.
Burleigh & Challener, for defendant.

DAVIS, J., November 3, 1915.-After an examination of the evidence offered in the trial of this case, we have come to the conclusion that it is only necessary to consider the motion of the defendant for judgment non obstante veredicto.

Plaintiff's automobile truck was stopped in the middle of a square between the rail of the street car track and the curb. The car of the defendant company came in contact in some manner with the automobile truck causing the damages for which this suit is brought. The accident occurred after dark on the evening of December 21, 1910. The driver of the automobile truck testified that owing to snow and ice he was not able to drive the automobile truck at the plaec where he stopped close to the curb, but stated in his examination: "Q. When you came to the place where you were going to stop and make a delivery, is that when you left the car track? A. Yes, sir, just above there; just to let me in what I thought was in the clear. So much snow and ice on the street all along there I could not drive on the side. A. As close Q. And you say you got over close to the curb? as I could get for the ice; there was ice and snow piled up, and I could not see the curb, but I got in as far as I could." And further on in his testimony he states: "Q. As a matter of fact were your rear wheels farther from the curb than the front wheels? A. No, not as near as I could tell; perfectly straight. I got off and looked back, got off the left side and glaced back as I generally did, and thought I was in the clear.

McCreery & Company vs. Pittsburgh Railways Company

Q. You thought you were in the clear, but were you hind wheels closer to the track than the front wheels? A. No, I think not."

The motorman also in his examination stated that the night was dark and it was raining, and that he had his face close to the glass looking ahead along the track, that he saw the tail light of the automobile truck about three feet from the track, and from all appearances he had a clear track ahead of him. The motorman was asked: "Q. Will you just tell the court and jury what you know about the accident? A. Well, I was coming down at a moderate rate of speed, it was an awful bad night, dark, could not even see anybody standing along the street until the light reflected on them on passing, and between Friendship and Baum, where I had been passing vehicles of all kinds and had plenty of room, but could not see this truck, only the light, and the side of my car, the trucks of my car, struck some part of this machine, the back end."

Mr. Alexander, a witness, testified that he was looking ahead and saw what he thought to be the tail light of an automobile off to the side of the track, and that was his impression, that it was an automobile and it was in the clear.

The evidence in this case indicates that the car was running at its usual rate of speed. The defendant ought not to be charged with negligence, unless under all the circumstances, the motorman saw or could have seen that the automobile truck was in such proximity to the street car track that the car would in all probability come in collision with the truck. If the driver of the truck, when he got off his machine and looked along the side, thought it was clear, the motorman in the passing car ought not to be expected to reach any different conclusion than that of the driver of the automobile truck who was in a better position to determine that fact: Patton vs. Philadelphia Traction Co., 132 Pa., 76. We are, therefore, of the opinion that the plaintiff has not made out a case of negligence against the defendant company, and that the rule for judgment non obstante veredicto should be made absolute.

ORDER

And now, November 3, 1915, the motions ex parte plaintiff for a new trial and for judgment non obstante veredicto are refused, and the motion ex parte defendant for judgment non obstante veredicto is made absolute, and upon payment of verdict fee judgment is directed to be entered in favor of the defendant.