Young v. South Boston Ice Co. , 150 Mass. 527 ( 1890 )

Kítowlton, J.

The defendant’s servant was employed to drive an ice-cart along the streets for the purpose of delivering ice to the defendant’s customers. The question presented by this bill of exceptions is whether the facts set out in the request for instructions, if found by the jury to be true, would have precluded them from also finding that at the time of the collision the defendant's' servant was acting within the general scope of his employment. If he was so acting, the defendant is liable for his act, even though it may have been wilful. Howe v. Newmarch, 12 Allen, 49. Holmes v. Wakefield, 12 Allen, 580. Ramsden v. Boston & Albany Railroad, 104 Mass. 117.

If all the facts were proved according to the assumption in the defendant’s request, we think they were- not necessarily inconsistent with the plaintiff’s theory. Upon the question raised, the jury might consider all the evidence, and it was competent for them to find that, at the time of the collision, the driver drove against the plaintiff’s carriage in trying to do the defendant’s business, and that he was acting within the general scope of his employment. The request for instructions was rightly refused.

Exceptions overruled.