Page images
PDF
EPUB

test to ascertain whether the wheels purchased by it are reasonably fit for the purposes for which it uses them, and upon failure to exercise such care it is responsible for any defect which would have been discovered.22 The Court says:

"A modern automobile, properly equipped with brakes and assembled in harmony with the plans underlying the construction, is not inherently a dangerous machine. In the hands of a reasonably intelligent and careful operator it involves no greater hazards to the public than a team of horses attached to a wagon. But this theoretically safe machine becomes inherently unsafe when it is improperly assembled or when the brakes are constructed of materials which will not stand the necessary strain upon them; such an automobile, designed for use upon the highways (and this court may take judicial notice of the use to which such vehicles are commonly put), is a menace to the safety of the public, and it devolves the duty upon the manufacturer to use proper materials and to use due care in the assembling of such materials in the completed machine, and the character of the injuries resulting from defective materials and construction has nothing to do with the question of the manufacturer's duty. . . The manufacturer had no more right to send out a car with a brake which was not properly tested than he had to send out a car with a wheel which was not up to the standard, as in the case of McPherson v. Buick Motor Co. (153 App. Div., 474, 138 N. Y. Supp., 224; id., 160 App. Div., 55, 145 N. Y. Supp., 462).) Having disregarded this duty to the public in general, the purchaser, the manufacturer is liable for the injury growing out of such negligence, whether such injury be to the person or the property of the purchaser, although the vehicle was not purchased directly from the manufacturer, but from an agent to whom it was sold."

The doctrine of these two cases has been, however, disapproved by a majority of the United States Court of Appeals, Second Circuit,23 where it was decided that a manufacturer of automobiles, which purchased the wheels used on its automobiles, was not liable to an injured person who purchased an automobile manufactured by it from a dealer, and who had no contractual relations with it, for its negligent failure to discover that one of the wheels was defective, since, while one who manufactures articles inherently dangerous is liable to third parties injured by such articles, unless he exercises reasonable care, one who manufactures articles dangerous only if defectively made is not liable to third parties for injuries, except in case of willful injury or fraud. Dissenting from the decisions of the majority of the Court, Judge Cox said:

"If the law, as stated in the prevailing opinion, be sustained, the owner of an automobile entirely free from fault may be injured for life by the collapse of a decayed wheel occurring a few months after its purchase, and be absolutely without redress. It is, I think, doubtful whether, in the circumstances disclosed, an action can be brought to a successful termination against the Pennsylvania company where the wheel was manufactured. If this be so it follows that an injury may be occasioned by the grossest negligence and no one be legally responsible. Such a situation would, it seems to me, be a reproach to our jurisprudence.

22 McPherson v. Buick Motor Co. post.

23 Cadillac Motor Car Co. v. Johnson, 221 Fed. 801.

"The principles of law invoked by the defendant had their origin many years ago, when such a delicately organized machine as the modern automobile was unknown. Rules applicable to stage coaches and farm implements become archaic when applied to a machine which is capable of running with safety at the rate of 50 miles an hour. I think the law as it exists today makes the manufacturer liable if he sells such a machine under a direct or implied warranty that he has made, or thoroughly inspected every part of the machine, and it goes to pieces because of rotten material in one of its most vital parts, which the manufacturer never examined or tested in any way. If, however, the law be insufficient to provide a remedy for such negligence, it is time that the law should be changed. 'New occasions teach new duties;' situations never dreamed of 20 years ago are now of almost daily occurrence.

"The law should be construed to cover the conditions produced by a new and dangerous industry, and should provide redress for such injuries as the plaintiff has sustained. My own judgment is, considering the dangers to be encountered from passenger automobiles, that the manufacturer is under an implied obligation to build such cars of materials capable of doing the work required of them. He may purchase the parts of makers of high reputation, but this does not absolve him from the obligation of a personal inspection, which at least will discover obvious defects, such as decayed and 'dozy' spokes. If it be impossible for the manufacturer to inspect the wheels at his own place of business he should have a representative skilled in the business at the wheel factory to make such inspection. In other words, where the lives and limbs of human beings are at stake it is not enough for the manufacturer to assert that he bought the wheels which collapsed four months after it was sold from a reputable maker and thought it was made of sound material. Such an excuse might be sufficient in the case of a farm wagon or a horse-drawn vehicle of any kind, but in my opinion it is wholly insufficient in the case of a wagon propelled by gasoline which is capable of making fifty miles an hour. What would be regarded as sufficient care in the former case might be gross negligence in the latter. The ultimate question is, can a manufacturer of motor cars escape liability for an injury occasioned by a grossly defective wheel by proving that he purchased the wheel from a reputable manufacturer? I think this question must be answered in the negative."

As the courts have without exception applied a strict measure of responsibility to corporations using or furnishing the dangerous element of electricity we agree with the New York Law Journal that the decisions of the New York Supreme Court and the dissenting opinion of Judge Coxe indicate the capacity of the common law to deal with new situations and conditions according to their essential necessities.

In Luckett v. Reighard,24 in the Supreme Court of Pennsylvania last year, a judgment was affirmed for damages for personal injuries sustained through the negligent operation of an automobile. The owner was in the habit of operating his own car, but he kept the same at the defendant's garage, and the contention on conflicting evidence was that the defendant, as part of the arrangement between himself and the owner, permitted his employee to take the car from the garage to the owner's home and to return it from the

24 93 A. 773.

owner's home to the garage. Upon the occasion of the accident the machine was being returned to the garage and the defendant, in addition to disclaiming the existence of the relationship of master and servant as to this particular service, further contended that the person acting as chauffeur had so far deviated from the direct route from the owner's house to the garage that the employee was acting outside the scope of his employment. Said the Court:

"We think the evidence was sufficient to show that the machine was being operated by the defendant's servant at the time the plaintiff was injured. It is conceded that Schmeltz's machine, which collided with the plaintiff, was stored at the defendant's garage. The witnesses disagree as to the terms of the contract between Schmeltz and the defendant by which the latter was to store the machine. The question was submitted to the jury, and they found in effect that the defendant was not only to store the machine, but was to furnish an employee to run the machine between the garage and Schmeltz's home. While the employee was performing this duty, especially in the absence of the owner, he was manifestly not the servant of Schmeltz, but of the defendant, who employed him and paid him for the service. He was under the defendant's control and was subject to his orders and directions. When the machine was being returned to the garage from the Schmeltz residence by the employee on the night of the accident it was as much in the custody of the defendant as when it was stored in the garage. While the employee, therefore, was operating the machine between those two places he was doing so in furtherance of the business of his employer, who was responsible for his acts. If it were the duty of a night watchman at a garage, says the Court in Firemen's Fund Insurance Co. v. Schreiber (150 Wis., 42, 135 N. W., 507, 45 L. R. A., N. S., 314, 326, Ann. Cas. 1913E, 823), to deliver a customer's machine to him at his house upon call therefor, and in responding to such a call he carelessly or wantonly injured the machine, the wrong would be one within the scope of his employment."

In Reilly v. Connable25 the New York Court of Appeals holds that the owner of an automobile is not liable for an accident caused by his chauffeur while the latter was driving the machine on an errand for himself without the knowledge of the owner, though he had frequently used it in doing errands for himself without asking for or receiving express consent, and the owner had not forbidden such use.

In Slotower v. Clark the Missouri Court of Appeals decided that where defendant, after being driven to church by his chauffeur, directed the chauffeur to go to a building west from the church and get his son and then return to the church to take the defendant home, but instead the chauffeur went east to collect a debt owing to him, and in returning the machine injured plaintiff, defendant could not escape liability on the ground that the chauffeur was not within the scope of his employment.

In Neubrand v. Kraft the Supreme Court of Iowa ruled that where a garage keeper let his automobile to his codefendant, al

25 N. Y. Law Jour., Apr. 28, 1915 27 151 N. W. 455.

26 174 S. W. 148.

though such codefendant was not familiar with the operation of that particular make of car, he was not liable, after having given reasonable instruction as to the operation of the car, for personal injuries to a third person caused by its negligent operation by such codefendant.

And from the opinion of the Supreme Court of Maine in a recent case it seems that one may commit a criminal assault with an automobile. It says: "The plaintiff in error was convicted of assault and battery by 'willfully and unlawfully' striking and wounding one Thomas Mitchell with an automobile, as charged in the indictment." As to fast driving the Court says: "It requires neither argument nor illustration to show that the excessive rate of speed at which an automobile is driven is a product of the will of its driver and not the result of his mere inattention or negligence. The two cannot be confused any more than the hurling of a baseball bat into a crowd of spectators could be confused with its accidentally slipping from the hand of the batter. If a blow inflicted in the former manner would constitute an assault, so must a blow inflicted by a willful act applied to a much more dangerous agency, since it cannot be that what would be a crime if done with a plaything weighing a few ounces ceases to be a crime if committed with an engine weighing thousands of pounds driven by many horse powers of force. It has often been held that responsibility increases with the likelihood of injury, but never the reverse, that I am aware of. There is therefore no legal reason why the crime of assault and battery may not be committed by driving an automobile on a public highway at a rate of speed that endangers the safety of other persons and actually results in such an injury.

WHO ARE "PASSENGERS"-INFANT RIDING FREE.-An interesting decision on this question is found in a recent Indiana case where it was laid down that a woman, who was requested by the conductor of a freight train to accompany and take charge of a person who had been injured in a collision, was a "passenger" on the freight train for that trip, and entitled to care as such.29 The Court says:

"The allegations of the complaint show that appellant's conductor, in charge of the freight train on which the injured people were placed to be taken to a hospital at Terre Haute, requested appellee to accompany them and care for the injured lady; that in pursuance of such request she entered the caboose, sat by the woman and gave her constant attention until the train was suddenly and violently stopped, and appellee was thereby thrown from her chair and injured. Independent of the authority or lack of authority of such conductor under the ordinary conditions of operation to take passengers on such train, in the emergency and under the condi

28 State v. Schutte, 93 A. 112.

29 Vandalia R. Co. v. Darby, 108. N. E. 778.

tions shown by the complaint, when appellee entered the caboose and rode on the train, for the purpose of that trip the relation of carrier and passenger existed, and it became and was the duty of appellant to exercise the highest practical care and diligence in the operation of such train, to avoid injuring appellee and the other persons transported thereon in the caboose as alleged."

In Alabama it is laid down by the Court of Appeals that a child about nine months old, who accompanies her mother, who is a passenger, is a passenger, though riding free, and the carrier owes her the same duty as if fare had been paid. It is therefore decided that where a mother, carrying a child about nine months old, became a passenger and notified the agent collecting the fare from her that she desired to get off at a station, and that she had never been there, the carrier owed the child the duty to give the mother notice. that the train had stopped, or was about to stop, at her destination, either by calling the station distinctly, or by personal notice, and to stop the train and afford the mother a safe place and reasonable time to alight, and, where it failed to do so, and carried the child and the other beyond destination, and in returning to the destination the child became ill as a proximate consequence thereof, the child could recover damages.30

INJUNCTION

EXCLUSION OF DRAMATIC CRITIC FROM THEATRE REMEDY PRESCRIBED BY STATUTE. Recently in New York a newspaper writer and dramatic critic asked for an injunction restraining the proprietors of certain theatres in the city from excluding him from their theatres. He alleged that owing to the unfavorable character of some of the criticisms written and printed by him concerning certain plays produced by defendants, the latter have refused to permit him to enter any theatre controlled by them, and threaten so to prevent him in the future. The reason given by defendants for so excluding plaintiff was that his articles were not fair reviews or criticisms of the plays produced or of the productions or of the acting, but were biased and improper and inaccurate. As a theatre is not, according to common law rules, a public place to which any person is entitled to enter on paying the usual charge; the plaintiff's case was based upon the Civil Rights Statute of New York-a law which was passed for the protection of the negroand which provides:

"All persons within the jurisdiction of this State shall be entitled to the full and equal accommodations, advantages and privileges of any place of public accommodation. resort or amusement, subject only to the conditions and limitations established by law and applicable alike to all persons. No person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any such place, shall directly or indirectly

30 Southern R. Co. v. Herron, 68 S. 551.

« PreviousContinue »