Chapman v. Public Service Railway Co.

72 A. 36, 77 N.J.L. 258, 1909 N.J. Sup. Ct. LEXIS 147

• Court: Supreme Court of New Jersey
• Decided: March 2, 1909
• Status: Published

Opinion

The opinion of the court was delivered by

Garrison, J.

The appellant contends that the trial court should have taken the case from the jury on two grounds—first, that the motorman was not acting within his authority as the appellant’s servant; and second, that his negligence was not made out. Appellant concedes in his brief that “The motorman acted within his authority in endeavoring to clear the wagon from the track.” He adds, “It is doubtful if this authority extended to the pushing of the wagon all the way up the hill.”

We arc unable to make the distinction as matter of law. The transaction in which the motorman engaged had for its object, so far as the interests of the railway company were concerned, the removal from its tracks of an impediment to the progress of its car. Whether in the details of this transaction the appellant’s servant acted wisely or unwisely is aside from the question. He did what in reason appeared to him to be for the interest of the company. His acts were not wanton or for personal ends. Such acts were therefore within the scope of his employment, so that for his failure to exercise reasonable care the company is liable to the owner of the team for injuries resulting from such neglect.

Whether or not the motorman failed to exercise reasonable care that his car should not go forward until the fender was disengaged from the wagon was a question of fact under the testimony and as such was properly left to the jury.

The judgment of the First District Court of Newark is affirmed.