Depue v. George D. Salmon Co.

The opinion of the court was delivered by Swayze, J.

This is an action to recover for injuries to children of tender years who, while walking on the highway, were struck by the defendant company’s automobile. Judgment was entered both against the company and its employe, who was acting as chauffeur. No appeal is taken by the employe. The only question raised is whether the defendant company is legally liable for his act or default. He was at the time on his way home after his day’s work was done. By the arrangement between him and his employer, the defendant company, he was entitled to use the automobile to take him to his home at night and from his home to business in the morning. The object was to enable him to reach his place of employment at an earlier hour than he otherwise could. The manager of the company, George G. Salmon, testified that at the time of year when the accident happened their work was heavy and the employe had to be there earlier than the ordinary business hours.

This case is governed by the rule of Cicalese v. Lehigh Valley Railroad Co., 75 N. J. L. 897, 900. We there said: “The relation of master and servant continues during the carriage of the servant to and from his work, when done by the master or with his consent, where from the character of the service such transportation is beneficial both to the master and servant.” That is the present case.

The judgment is affirmed, with costs.

For affirmance — The Chancellor, Chief Justice, Swayze, Trenchard, Parker, Bergen, Minturn, Heppenheimer, Williams, Taylor, Gardner, JJ. 11.

For reversal — Kalisch, Black, White, JJ. 3.