Perlstein v. American Express Co.

Knowlton, J.

In our opinion there was evidence tending to show that the driver of the team which collided with the plaintiff’s team was negligent. The plaintiff introduced testimony that he himself was driving on the right hand side of Harrison Avenue, close to the sidewalk, and it tended to show that he was in the exercise of due care. The driver of the other team was driving “very fast” in the opposite direction, and collided with the plaintiff. This was evidence that he was acting in violation of the statute which requires, persons meeting each other as these persons were, to drive “ to the right of the middle of the travelled part ” of the road, and unexplained it indicated negligence. Pub. Sts. c. 93, § 1. Reynolds v. Hanrahan, 100 Mass. 313 . Young v. South Boston Ice Co. 150 Mass. 527 . Randolph v. O’ Riordan, 155 Mass. 381 .

There was evidence tending to show that there was no collision, but that the accident was caused by the running of the plaintiff’s horse, and there was other evidence that none of the defendant’s teams was in the vicinity at the time of the accident.

The judge rightly ruled that the witness, Cooper, could not be permitted to testify as to the routes of the drivers of the defendant company on the morning of the accident, for the purpose of showing that the wagon referred to was not one of the defendant’s wagons.

But it was a part of the plaintiff’s case to prove that the negligent driver was a servant of the defendant, acting within the scope of his employment at the time of the accident. To prove this he relied upon the inference that a person driving such a team as was described, the wagon being marked “American *532 Express Company,” was one of the defendant’s servants then engaged in the defendant’s business. If the routes prescribed for the defendant’s servants were such that at this time none of them could be driving through that part of Harrison Avenue without, for the time, abandoning the service in which he was engaged and going off for some purpose of his own, the defendant would not be liable, even if the team which is said to have caused the collision was one of its teams, and was driven by a person who was regularly employed in its service. The question for the jury was not whether the defendant owned the team, but whether the person who was driving it negligently was then acting for the defendant in doing the work which he was directed to do. If the servant was not then acting in the course of his employment, but was off “on a frolic of his own,” * the master would not be liable. Howe v. Newmarch, 12 Allen, 49 . Bowler v. O’Connell, 162 Mass. 319 . Brown v. Jarvis Engineering Co. 166 Mass. 75 . Driscoll v. Scanlon, 165 Mass. 348 . Bard v. Yohn, 26 Penn: St. 482. Storey v. Ashton, L. R. 4 Q. B. 476, 479. Stevens v. Woodward, 6 Q. B. D. 318.

As bearing upon this question the defendant offered to show by the person who had charge of the drivers and helpers, the team service in Boston, that no driver of an express team of the defendant had a right to be there that morning in the course of his employment. We are of opinion that the evidence was competent.

Exceptions sustained.

Parke, B., in Joel v. Morison, 6 C. & P. 501, 503.