White Oak Coal Co. v. Rivoux

23 Ohio C.C. Dec. 642, 15 Ohio C.C. (n.s.) 143

Opinion

JONES, J.

The plaintiff below having shown that the automobile was the property of defendant and that Tribbey, the driver, was in defendant’s employ, the burden was then placed upon defendant to show that at the time of accident Tribbey was acting outside the scope of his employment in a personal enterprise.

He testified that he was so acting and that he was inspecting the machine preparatory to going on a personal errand later in the day. Whether he was so engaged at the time was a question of fact properly left for determination to the jury. They were not bound to believe Tribbey’s statement and evidently did not. It was clearly shown that his evidence before the coroner was in conflict with his testimony at the trial, not only with reference to the circumstances of the accident but as to the nature of his employment and the duties devolving upon him.

In view of his conflicting statements the jury must have disregarded his testimony. The question as to whether he was manager at -the time, or in a position of superiority, is immaterial and not entitled to the consideration given it by counsel in the discussion of the case.

We can not say that the verdict was manifestly .against the weight of the evidence. After a careful reading of the record and the excellent briefs of counsel, we are of the opinion that the judgment should be affirmed. (Thompson, Negligence Secs. 613, 614, 615, 616). In Ohio the question is one for the jury. Lima Ry. v. Little, 67 Ohio St. 91.

Smith and Swing, JJ., concur.