Wilkinson Ex Rel. Wilkenson v. Moore & Preston Coal Co.

If the driver caused the plaintiff's injury and at the time was not acting within the scope of his employment, the defendants are not liable. Danforth v. Fisher, 75 N.H. 111; Dearborn v. Fuller, ante, 217.

As there was no evidence of a custom of drivers of coal wagons to employ assistance in unloading, payable in rides, or that the assistance was reasonably necessary in this instance, there was no answer to the uncontradicted evidence that the defendants' drivers were not authorized to employ assistants or furnish rides.

There was no error in the refusal to submit this question to the jury. Dearborn v. Fuller, supra; Davison v. Parks, ante, 262. As the driver had no authority in fact or in law to invite the plaintiff to ride because doing so was not within the scope of his employment, his invitation, if given, was not the invitation of the defendants. The ruling that the plaintiff was not an invitee was correct.

As the jury have found for the defendants, it is unnecessary to consider whether a verdict should have been directed for them.

Exceptions overruled.

All concurred.