Louis v. Johnson

UbNER, J., delivered the opinion of the Court. A judgment on the verdict of a jury, for the sum of $500, was recovered by the appellee against the appellant, and the driver of his automobile, for injuries sustained in its collision -with the appellee’s car at the intersection of Chase Street and Patterson Avenue in Baltimore. The only exception in the record was taken because of the action of the trial court in granting an instruction proposed by the plaintiff, and in refusing to direct a verdict in favor of the defendant, wlm owned the car which collided with the ¹¹⁷ plaintiff’s, automobile. The other defendant has not joined in the appeal.

It .appears from the evidence, that the collision occurred as the plaintiff’s ear was moving westwardly on Chase Street and across Patterson Avenue, and as the defendant’s car was proceeding along: that avenue and across Chase Street in a northerly direction. The plaintiff’s car', therefore, it is claimed, had the right of way. (Code, art. 56, sec. 163.) It had reached a point about halfway across the avenue when, according to the plaintiff’s proof, it was struck on its left side by the other oar as it came from, the south. It was testified that the appellant’s car was moving at a high rate of speed.

The evidence as to the facts is conflicting, hut upon the theory that the plaintiff and the driver of his ear, by whose side he was seated, ought to have seen the approaching automobile of the appellant in time to avoid the collision, it is argued that they were guilty of such contributory negligence as to warrant an instruction denying recovery. The driver of the plaintiff’s car testified that he sounded his horn and looked to the right and left as he started to cross Patterson Avenue, and that, he did not seo the appellant’s car until the moment of the impact. In view of the precautions and other circumstances thus described, the apparent assumption by the plaintiff and the driver of his automobile that their right of way would not be disregarded by the driver of a car approaching from the left does not warrant a decision that the case should have been withdrawn from the jury on the ground of contributory negligence. Brown v. Patterson, 141 Md. 293 ; Kelly v. Huber Baking Co., 145 Md. 321 .

The appellant was not an occupant of his car a,t the time of the accident, and the main contention is that the driver of the car was not then acting within the scope of any agency or employment by virtue of which the appellant might be held legally responsible for the injuries proved. When the collision occurred his automobile was being driven to a place where the driver had left a, sponge which he intended to use in washing the car. There was testimony that the appellant ¹¹⁸ in referring to tbe accident said be was waiting for tbe driver then in charge of it to> “take bim out,” and be “did not know what bad happened to him.” Tbe ordinary presumption would be that tbe person operating tbe appellant’s car was bis agent or employee for that purpose. Stewart Taxi-Service Co. v. Roy, 127 Md. 70 ; Myers v. Shipley, 140 Md. 380 ; Whitelock v. Dennis, 139 Md. 566 ; Dearholt Motor Sales Co. v. Merritt, 133 Md. 323 ; Debelius v. Benson, 129 Md. 699 ; Vonderhorst Brewing Co. v. Amrhine, 98 Md. 406 .

But a conclusion to tbe contrary is said to be legally required by tbe testimony for tbe defense to the effect that tbe-man who was driving tbe car at -the time of tbe accident was not employed by the appellant as a chauffeur, but only as a laborer, that be bad been engaged by tbe appellant’s wife for that day, which was a Sunday, to drive tbe automobile for her, and that be was not then acting under the appellant’s orders or for bis benefit. If tbe evidence proved without contradiction that tbe driver of tbe car was in fact not tbe agent or servant of tbe owner, a directed verdict for the latter would be justified upon tbe authority of the- decisions just noted. • But no such conclusive effect can properly be attributed to tbe evidence. Tbe driver of tbe car was tbe appellant’s employee. While described as a laborer in tbe testimony, be was qualified to serve as a chauffeur, and the actual service be rendered at times in that capacity, though limited to appointments made by the appellant’s wife, does not appear- to have been in pursuance of any separate employment, From tbe testimony as to the appellant’s statement already quoted it could be inferred that tbe car was intended for bis personal use on tbe day of tbe accident and that be was awaiting its arrival in accordance with bis previous instructions.

Tbe use of tbe oar by tbe chauffeur in procuring tbe sponge with which it was to be cleaned, preparatory to its being used for a trip which the appellant may have bad in view for himself or bis wife, could not reasonably be held upon tbe evidence in this ease to have been so clearly beyond tbe Scope of tbe employment as to* require tbe withdrawal ¹¹⁹ of the issue from the jury. It is inferable from the evidence that the employee was not driving the ear at the time and place of the accident for* any separate purpose of his own, but solely to the end that he might properly prepare it for the particular use for which his employer wished it to be available. In that respect the ease differs essentially from, Symington v. Sipes, 121 Md. 313 ; Dearholt Motor Sales Co. v. Merritt, supra, Debelius v. Benson, supra, and other eases which counsel for the appellant have cited. In view1 of the