Dunne v. Boland

Mr.. Justice Barnes

‘delivered the opinion of the court.

Defendant in error, on a trial before the court without a jury, recovered judgment for one hundred dollars in a suit brought against plaintiff in error for personal injuries received under the following circumstances:

Boland, the defendant, was an undertaker and furnished for hire conveyances used at funerals conducted by him. On the funeral occasion in question one Fox, a neighbor of the deceased, ordered from defendant an automobile with directions to charge the same to him. Pursuant thereto an automobile with a driver thereof was furnished to Fox, and the same was used to convey Fox and other persons invited by him, including plaintiff, to and from the house, church and place of interment. On the return from the cemetery the automobile struck the rail of a bridge causing it to upset, whereby plaintiff was injured. These facts were undisputed. The only other material question of fact was whether the accident was due to the carelessness and neglect of the driver. On that question the evidence preponderates in favor of plaintiff. The driver, though shown to be within the jurisdiction of the court, was not called to refute strong evidence tending to show that the accident was due wholly to his inattention, carelessness and neglect. Defendant introduced evidence that after the accident a defect was found in the steering gear that was not discoverable by the exercise of reasonable care in the inspection of the automobile before used. But as there is nothing in the record to indicate that such defect may not have resulted from the accident, and as the driver was not called to prove that he had any difficulty in steering the car, it did not refute plaintiff’s proof of negligence.

As to defendant’s legal liability on such a state of facts, we think his position was that of a private carrier for hire, no different from that of a liveryman rendering similar carriage service. Whether he or his chauffeur did the driving makes no difference. It being done for hire he was required, as said in Payne v. Halstead, 44 Ill. App. 97, respecting a liveryman, “to exercise the same measure of skill and care which is applied to a person engaged in any special pursuit in which he undertakes to perform services for others for compensation. Such a one undertakes to possess the skill adequate to the undertaking, and promises to exercise due diligence and care in its performance; but ordinary skill, diligence and prudence are all that the law exacts from him.” We think the evidence discloses not merely a want of ordinary skill, diligence and prudence, but positive neglect and inattention to duty on the part of the driver.

As we view it, the contract for hire was for the benefit of each occupant of the automobile invited by Fox, and imposed the same duty towards each. His right to invite others' was manifestly recognized and consented to. The fact that defendant did not know the names or number of the persons for whom Fox evidently hired the conveyance does not, in our opinion, affect the question of liability. In Harper v. Fay Livery Co., 264 Ill. 463, where the contract of hire was implied from the circumstances of use, a judgment for damages to one of several occupants of a vehicle was upheld.

We think the evidence supports the contract as alleged in the statement of claim, the charge of negligence, and the amount of damages assessed. In view of that conclusion it is unnecessary to consider evidence objected to as hearsay that may well have been disregarded, and whether the court should have held as law certain propositions submitted to it. A correct application of the law to the manifest facts required a finding and judgment for plaintiff.

Affirmed.