The Supreme Court has power, under chapter 193, section 8, of the Revised Statutes, to grant a new trial in the case of a criminal prosecution in the Municipal or Police Court of the city of Providence. Whether the owner of a hack who is personally without fault, can be held to answer for a non-observance of an ordinance directing him to have two lighted lamps to his carriage when driving it in the night time, query. He certainly cannot be so held when the hack is being used by some person not then acting in his service, and without his knowledge or consent, as when the driver, being in his employ as day driver, uses the hack for his own purposes, in the night time, unauthorized by him and without his knowledge.
DURFEE, J.
The evidence is quite clear, that the driver of the hack, being in the service of the defendant simply as a day driver or employee, was not in his employment at the time of the alleged violation of the ordinance, but was using the hack for his own purposes, unauthorized by the defendant, and without his knowledge, and, so far as appears, without any personal negligence on his part. Even if the owner of a hack, who is personally without fault, can be held to answer for a nonobservance of the ordinance by his servant while using the hack in such owner's service, (as to which we express no opinion,) we nevertheless think he cannot be so held when the hack is being used by some person not then acting in his service, and without his knowledge or consent. If this view of the law had been clearly presented to the jury by the judge of the Municipal Court, we think their verdict, upon the evidence which is reported to have been submitted to them, would have been different.
Section 6 of the ordinance under which the complaint was preferred, makes the licensee liable as owner, unless, upon the sale of his carriage, notice be given to the city-clerk, and the license delivered to him, but does not, in our opinion, impose any liability not imposed on the owner by other provisions.
The Revised Statutes, Chap. 193, section 8, give the Supreme Court "power, in their discretion, on the petition of the accused, to grant trials, or new trials, upon indictments or other criminal prosecutions in which a verdict or judgment shall have been rendered against such petitioner," c. The language is broad enough to include a criminal prosecution in the Municipal or Police Court of this city, and we are not aware of any provision of the charter of the city, or of any statute, to limit its effect. We therefore think we have jurisdiction to entertain and grant this petition.
New trial granted.