Powell v. Deveney

57 Mass. 300

• Court: Massachusetts Supreme Judicial Court
• Decided: March 15, 1849
• Status: Published

Opinion

Fletcher, J.

This case comes before the court upon exceptions taken to the instructions to the jury by the judge in the court below. To the instruction, that the defendant had no right to have his truck standing in the street, for the purpose of remaining there during the night, there surely can be no valid exception. The -reasoning, contained in the instruction on this point, is clear and conclusive. Besides, if the defendant might have rightfully kept his truck in the street, the manner in which it was kept there, with the shafts raised up, so as to be liable to swing round, and sweep the sidewalk, was manifestly so dangerous and improper, that the defendant would be liable for any injury which might be occasioned by reason of leaving the truck in that position.

The instruction, that the defendant was liable for the act of his servant, in leaving the truck in the street, though di rected to place it upon the lot nrovided for the purpose, was clearly correct. The servant was rightfully in possession of the truck, and being thus rightfully in possession, and about his master’s business, the master must be responsible for his neglect, in improperly leaving the buck in the street.

The defendant can no more be exempted from liability, because his servant disobeyed his orders in not placing his truck on the lot provided for it, than a master can be exempted from liability, for damage done by his servant in driving carelessly against a carriage, when he has been ordered to drive carefully, and to avoid coming in contact with any carriage. The servant being about the business of his master, the master must be responsible for his acts, and cannot exempt himself by any order he may give the servant.

The instruction, as to the third point, was certainly sufficiently favorable to the defendant. The jury have found, under this instruction, that there was no culpable negligence on the part of Moore’s servant; so that it is found, in point of fact, that the negligence of the defendant’s servant, in carelessly and improperly leaving the truck in the street, was the sole and whole cause of the injury which the plaintiff has suffered.

The principles of law, applicable to this case, are so simple and familiar, that a more particular examination or illustration of them is quite unnecessary. The whole subject is most thoroughly examined in the case of Lynch v. Nurdin, 1 Ad. & Ell. N. S. 29. The principles of law, as established in that case, fully sustain the instructions to the jury, given by the court below, and clearly warrant a judgment upon the verdict, in favor of the plaintiff in the present case.

Exceptions overruled, and judgment on the verdict.