Vicksburg Gas Co. v. Ferguson

^* Headnote 1. Motor Vehicles, 28 Cyc., p. 39. Appellee, Mrs. B.P. Ferguson, brought this action in the circuit court of Warren county against appellant, Vicksburg Gas Company, for damages done her automobile by means of a collision between it and an automobile truck belonging to appellant, and recovered a judgment for sixty-six dollars and fifty cents, from which appellant prosecutes this appeal.

Conceding every material fact which appellee's evidence tends to prove, the question is whether or not there is any liability on the part of appellant. If that question is to be answered in the affirmative, then the verdict and judgment appealed from must stand. On the other hand, if it is to be answered in the negative, appellant was entitled to a directed verdict in its favor as requested.

Appellee's evidence showed that the collision and damage done her car was through the negligence of the driver of appellant's truck, one R.W. Fuller, who was at the time appellant's plant foreman, but was driving appellant's truck on a mission of his own. On the day of the collision between the truck and car there was an Easter egg hunt for the children in the National Military Park at Vicksburg. Mr. Fuller, appellant's plant foreman, borrowed one of its commercial trucks used in connection with its business for the purpose of transporting to and from the Easter egg hunt several children. It is therefore without conflict in the testimony that at the time of the collision Mr. Fuller, the driver of the truck whose fault caused the collision, was not acting in furtherance of his master's business (the business of appellant), but was acting entirely without the scope of his authority.

Appellee, however, seeks to justify the judgment appealed from upon the principle that an automobile is a dangerous instrumentality — is per se dangerous — and therefore the owner is under the duty to so guard it and control it as that it will not cause injury to others. In other words, appellee would classify automobiles with what are called dangerous instrumentalities such as ferocious animals, dynamite, gunpowder, and other inherently dangerous contrivances and agencies, and hold the owner liable for injuries resulting in its negligent operation whether the driver be the servant or bailee of the owner. If an automobile is to be so classified, undoubtedly, under the authorities, the owner is liable for injuries caused by its being negligently operated regardless of whether the driver guilty of the negligence be his servant or bailee.

The question, therefore, is whether or not an automobile is such a dangerous agency as that it is the duty of the owner to so control it and guard it as that it shall not cause injury to others. Babbitt, on the Law Applied to Motor Vehicles, section 615, pp. 409-410, states that an examination of the cases on the subject discloses that they are practically unanimous in holding that a motor vehicle is not in the class of dangerous agencies; that they are not to be classified with what are called dangerous instrumentalities such as ferocious animals, dynamite, gunpowder, and other inherently dangerous contrivances, and that statement appears to be true. In section 609, page 400, of this work, the author speaks of two decisions which indicate a drifting the other way. In discussing those cases he uses this language:

"A statute giving a liability in rem on an automobile causing an injury has been recently upheld, and in another case flying in the face of all previous authority the court leaves it to the jury to say whether the owner of a car is liable for the negligence of his chauffeur while driving on an errand of his with the consent of the owner. The court attempts to justify his revolutionary decision by stating that the common law does not permit one to authorize another to use on the public highway an instrument which is peculiarly dangerous in its operation without imposing on such owner liability for negligent use. The liability grows out of the obligation of the owner to have the vehicle properly operated when it is by his authority on the public highway, and in another recent case the motor vehicle has been expressly called a ``dangerous instrumentality.' The peculiar thing about these decisions in Florida and Kentucky is that they apparently overrule contrary decisions in these states."

There is a full and apparently exhaustive treatment of this subject in Berry on Automobiles (4 Ed.), section 1146, p. 1025, sections 1244 to 1251, inclusive, pp. 1125 to 1130, inclusive. See, also, Huddy on Automobiles (6 Ed.), section 642, p. 824. The authors of these works on the law as applied to motor vehicles appear to be in accord that to class such vehicles as dangerous instrumentalities in the sense of the doctrine contended for by appellee is substantially against the unanimous holding of the courts.

Among other authorities, appellee refers to Barmore v. V.S. P. Railway Co., 85 Miss. 426, 38 So. 210, 70 L.R.A. 627, 3 Ann. Cas. 594. In that case the driver of the railroad tricycle which caused the injury was the servant of the railway company. When the driver of the tricycle took the machine out for the day's work on the day the injury took place through his negligence, he did so in furtherance of the master's business. Before he returned the tricycle to the master the injury took place for which suit was brought. The court held that it was a question for the jury and not for the court whether or not the tricycle was a dangerous agency in the meaning of the principle contended for here by appellee. We do not think that case is decisive of the question here involved.

In view of the rapid development of scientific knowledge and the great progress made of late years in mechanical inventions, many things at one time viewed as per se dangerous agencies are now considered of much benefit to mankind. The test is the degree of care required according to the circumstances in order to prevent these agencies becoming dangerous instrumentalities. Babbitt's Law Applying to Motor Vehicles, section 614, pp. 408 and 409. The result of our view is that this case must be reversed and judgment here for appellant.

Reversed, and judgment here.