Agency, Scope of employment. Municipal Corporations, Officers and agents. Automobile. Negligence, Invited person. Practice, Civil, Conduct of trial.
If an automobile, which had been purchased by a city for use in its street department under the control and direction of the superintendent of streets, was run into by a street railway car by reason of negligence on the part of employees of the street railway company, while, by direction of the superintendent of streets, the chauffeur in charge of the automobile, after having been to the house of the superintendent on business connected with the street department, was proceeding on his way to a garage where it was his duty to place the automobile when it was not in use, and, also by the superintendent's direction, had with him a person not employed by the city or in any way connected with its business, with the intention of deviating, at a point a half mile further along in the journey, from the direct route to the garage for the purpose of leaving such person at his house, it may be found that at the time of the collision the automobile was being used under the direction of the superintendent of streets and in the business of the city, the unexecuted intention to deviate, for purposes other than the city's business, from the direct route to the garage not yet having become operative, so that the automobile was not being used without authority in violation of St. 1909, c. 534, § 22; and the passenger may be found to have been a person invited to go in the automobile by a person authorized to give such an invitation.
It is within the discretion of a judge presiding at a trial and is a proper exercise of his discretion, where a statement in his charge as to testimony given by a witness is questioned by one of the parties who asks that the testimony of the witness be read from the notes of the court stenographer, to deny the request if the stenographer who made notes of the testimony is absent and the notes are inaccessible, and to charge the jury that their recollection of the testimony and not his is to govern in their deliberations.
HAMMOND, J.
These three cases, brought to recover damages caused by one and the same collision between an automobile owned by the city of Haverhill and a street car owned by the defendant, were tried together.
The machine had been purchased by the city for use in its street department under the direction and control of the superintendent of streets. One of the grounds set up in defense was that at the time of the accident the machine was not being used for the purpose for which it was bought, but in violation of St. 1909, c. 534, § 22, forbidding the use of an automobile without authority.
There was evidence that in obedience to orders given by John Cashman, the superintendent of streets, through his son Daniel, the plaintiff Regan, the regular chauffeur employed by the city in its street department to operate the automobile under the control and direction of the superintendent of streets, drove it, with Daniel, the plaintiff Fitzgerald and one Bryant as passengers, from the office of an express company situated on Washington Street in the city, in which company both the superintendent of streets and his son were stockholders, to the superintendent's house, situated on Hilldale Avenue in the city; that Bryant was the agent of a company engaged in "manufacturing and selling steam road rollers, scarifiers and road machines;" that a scarifier is used for the purpose of breaking up the surface of a road before it is relaid; that Bryant desired to sell to the city a scarifier for use upon the streets; that the superintendent previously had had business dealings on behalf of the city, but never otherwise, with Bryant representing the manufacturing company; that one of the purposes for which the automobile was driven from the express office to his house was to bring Bryant where the superintendent could talk on this business, and that after Bryant arrived at the superintendent's house he stayed there twenty or thirty minutes, spending the time in trying to sell a scarifier to the city represented by the superintendent. Upon this evidence the jury certainly could find that in going from the office of the express company to the superintendent's house the automobile was under the direction of the superintendent for one of the purposes for which it was bought.
There was evidence also that the superintendent's house was situated about three hundred and fifty feet westerly of Hilldale Avenue, and was connected therewith by a driveway; that Bryant and Daniel Cashman were left at the house shortly after six o'clock, P.M.; that the chauffeur then started for the garage in which the automobile was kept by the city when not in use, as it was his duty to do, taking with him Miss Fitzgerald, who had no relation to the street department but was a clerk in the express company's office, with the intention of leaving her at her house on his way to the garage; that the accident occurred just outside the driveway as the automobile turned into Hilldale Avenue; that the way from the superintendent's house to the garage and the way from the house to the home of Miss Fitzgerald were identical to a point more than half a mile beyond the place of the accident. Certainly on this evidence the jury properly could find that at the time of the accident the automobile was still being used in the street department and under the direction of the superintendent. It was the duty of the chauffeur at the close of the day to take the automobile to the garage. That duty he was performing, and the place of the accident was on the direct route. The unexecuted intention to deviate from the direct route for the accommodation of Miss Fitzgerald half a mile farther on, had not yet become in any way operative so far as respected the route and position of the automobile. So far as respected this ground the cases properly were left to the jury. And notwithstanding some criticisms by the defendant upon the language of the charge, we see no just ground of complaint as to that, or to the manner in which the trial judge generally dealt with the exceptions in the cases of Regan and the city.
The only additional ground of defense set out in the Fitzgerald case is that she was not invited to ride by any one having authority. But that is untenable. The evidence is ample to show that she was invited by the authority of the superintendent.
It was within the discretion of the presiding judge whether or not he would wait to procure the minutes of the absent stenographer and have them read to the jury.
In each case the order is
Exceptions overruled.