#### Ouellette, Appellant, vs. Superior Motor & Machine Works, Respondent.

*May 21*—

June *17, 1914.*

*Automobiles: Injury to pedestrian: Negligence: Contributory negligence: Questions for jury: Master and servant: When relation exists: Chauffeur furnished by garage Keeper: Who liable for his negligence.*

1. In an action for injuries to a person who, while standing in the street waiting for a street ear, was struck hy an automo*532bile, it appeared that tbe automobile was running very slowly, that plaintiff was plainly seen by tbe chauffeur, and that there was plenty of room to pass him; but the evidence being conflicting as to whether plaintiff stood still or, just as the automobile was about to pass him, stepped backward in front of it, the question of the chauffeur’s negligence is *held,*to have been one for the jury.

2. Upon plaintiff’s testimony in such case that he did not hear the automobile horn, that he had been standing where he was but a very few seconds, that he did not move before being struck, that one car which he wished to take had run by him, and that he was intent on signaling another so as not to be delayed, the question of his contributory negligence is *held*to have been for the jury.

3. Where the owner of an automobile stored it at a garage under an agreement by which the garage keeper, for an agreed compensation, was to furnish a chauffeur from time to time as requested to drive the car (it being left to the garage keeper to select the driver and pay him his compensation and to hire and discharge him at pleasure), the relation of master and servant existed between the garage keeper and the driver, and the garage keeper was liable for negligence of the driver while operating the car at a time when the owner was an -occupant thereof, if such owner did not assume to direct or control the method or manner of driving, further than to tell the driver where he desired to go.

Appeal from a judgment of tbe circuit court for Douglas county: EeaNK A. Ross, Circuit Judge.

*Reversed.*

On September 4, 1912, while plaintiff was standing at the southwesterly intersection of Tower avenue and North Twelfth street, in the city of Superior, between the curb and the street-car track, waiting to board a south-bound car on Tower avenue, he was run down by an automobile driven by one Knutson, an employee of the defendant, and this action was brought to recover damages for injuries sustained. The cSíñplaint alleged that the plaintiff was standing at the place where pedestrians usually and customarily stood preparatory to boarding south-bound street cars, — about four feet from the westerly track and on the west side thereof; that by reason of the negligent and careless driving of the automobile by *533the chauffeur plaintiff was struck and injured. The automobile was owned by Reverend Fardy and at the time of the-accident he and three other clergymen were riding therein. The automobile was stored at the garage of the defendant and a chauffeur was provided by the defendant whenever requested. Tower avenue was being paved at this time and only the westerly side of the street was open, to traffic. The complaint further alleged that the chauffeur at the time of the accident was in the employ of the'defendant and was acting within the scope of his employment and.in the furtherance of the business of said defendant. The answer denied the material allegations of the complaint and alleged contributory negligence on the part of the plaintiff. At the close of the testimony the court granted the motion of the defendant for a directed verdict in its favor, holding that at the time of the accident the chauffeur was acting as the servant of Reverend Eardy and for the time being was under his control. Judgment was entered accordingly, and from such judgment plaintiff appeals.

Eor the appellant there was a brief by *Grace, Hudnall &*Fridley, and oral argument by *George B. Hudnall.*

*Solon L. Perrin,*for the respondent.

BaeNes, J.

The respondent urges that the judgment of' the circuit court is correct (1) because the driver of the automobile was not negligent; (2) because the plaintiff was guilty of contributory negligence; and (3) because the relation of master and servant did not exist between the defendant and the driver of the automobile at the time of the accident, at least not to the extent that the rule of *respondeat superior*applies in the case.

1. The evidence offered in behalf of the defendant tended to show that the automobile was running very slowly at the time of the collision; that the plaintiff was observed by the driver and the other occupants of the car; that the horn of.' *534the automobile was sounded; that there was plenty of room for tbe automobile to pass between tbe plaintiff and tbe curb; and that tbe injury was caused by reason of tbe plaintiff stepping backwards toward tbe curb and in front of tbe automobile just as it was about to pass him. Tbe explanation is plausible and probable.

Tbe plaintiff, however, testified that be was standing near tbe street-car track for tbe purpose of signaling an approaching car and that be did not move from tbe time be took bis position there until he was struck by tbe automobile. There is some other evidence in tbe case which tends to corroborate this. This evidence raises a jury question. If a jury should find tbe testimony of tbe plaintiff to be true, there could be •no doubt about tbe negligence of tbe driver, because there is abundant evidence to show that plaintiff could be plainly seen and was seen and that there was plenty of room to pass him. Once it is established as a verity in tbe case that tbe plaintiff did not move from tbe position in which be stood, it would be difficult to escape tbe conclusion that tbe driver would have been guilty of manslaughter if plaintiff bad been killed; Tbe contention that there was no question with reference to tbe driver’s negligence for tbe jury to pass upon cannot prevail.

2. On tbe question of contributory negligence tbe case is ' somewhat closer. Tbe plaintiff apparently paid no attention to tbe automobile born. He says be did not bear it. He was not keeping a lookout for vehicles approaching him from tbe rear. However, be testifies that be bad been standing where he was but a very few seconds; that one street car bad run by him which be desired to take, and that be was intent ■on signaling another so as not to be delayed on bis homeward journey, and we think on tbe whole it was a question for tbe jury to answer whether or not he exercised under tbe circumstances that degree of care 'and prudence which is ordinarily exercised by tbe great mass of mankind under tbe same or similar circumstances.

*5353. On the third proposition relied on by the defendant the-court directed a verdict in its favor, and this ruling presents the principal as well as the most interesting quéstion in the case, which is this: Where the owner of an automobile stores it at a garage under ah agreement by which the garage keeper, for an agreed compensation, is to furnish a chauffeur from time to time as requested to drive the car (it being left to the garage keeper to select the driver and pay him his compensation and to hire and discharge him at pleasure), is-the garage keeper liable for the negligence of the driver while operating the car, the owner being an occupant thereof, but not assuming to direct or control the method or manner-of driving, further than to tell the driver where he desires to go?

Had the car and driver been hired from the garage keeper there would be no doubt that the rule of *respondeat superior*would apply. This court has so decided. *Gerretson v. Rambler G. Co.*149 Wis. 528, 136 N. W. 186; *Hannon v. Van Dycke Co.*154 Wis. 454, 143 N. W. 150. The law elsewhere is in harmony with these decisions, which really rest on the principle established in numerous cases dealing with the liability of livery-stable keepers. See notes to *Frerker v. Nicholson*(41 Colo. 12, 92 Pac. 224) 13 L. R. A. *n.*s. 1122, and *Morris v. Tredo*(83 Vt. 44, 74 Atl. 387) 25 L. R. A. n. s. 33; Berry, Automobiles, § 147; also note to *Kellogg v. Charity C. Foundation*(203 N. Y. 191, 96 N. E. 406), cited in 26 Am. & Eng. Ann. Cas. 886; 1 Thomp. Comm. on Neg. § 581; *Meyers v. Tri-State A. Co.*121 Minn. 68, 140 N. W. 184.

There are also some cases which approach the one under-consideration more closely in their facts than do the cases cited. In these cases the occupant of the vehicle owned it,, but the horse and driver were furnished by the liveryman. In such cases the latter has been held liable for the negligence of the driver. *Kellogg v. Charity C. Foundation,*203 N. Y. 191, 96 N. E. 406 (see comprehensive note to this. *536.case in 26 Am. & Eng. Ann. Cas. 883-885); *Quarman v. Burnett,*6 M. & W. 499; *Jones v. Mayor, etc.*L. R. 14 Q. B. Div. 890; *Parsons v. Wisner,*113 N. Y. Supp. 922.

The ease of *Neff v. Brandeis,*91 Neb. 11, 135 N. W. 232, 39 L. R. A. n. s. 933, is not distinguishable in principle from .tbe case under consideration. There the defendant owned .the'car and kept it in a garage under a contract to pay a .stipulated sum for storage and for a driver whenever desired. The accident occurred while the chauffeur was taking the car from the defendant’s home to the garage. The defendant was not in the car when the accident occurred, but if the chauffeur was the defendant’s servant while defendant was riding in the car, surely he was his servant for the purpose ■of taking the car from the defendant’s home to the place where he desired it stored. The court held that the chauffeur was not the owner’s servant.

The case of *Dalrymple v. Covey M. C. Co.*66 Oreg. 533, 135 Pac. 91, 48 L. R. A. n. s. 424, in which the garage owner was held liable, would also seem to be on all-fours with the present one. There the owner of the car was occupying it when the accident occurred and had given directions where to go and when to stop to the chauffeur furnished by the defendant.

The mere fact that Father Fardy was the owner of the automobile does not make him responsible and much less solely responsible for every injury caused by it. *Steffen v. McNaughton,*142 Wis. 49, 124 N. W. 1016; *Cunningham v. Castle,*127 App. Div. 580, 111 N. Y. Supp. 1057; *Reynolds v. Buck,*127 Iowa, 601, 103 N. W. 946; Babbitt, Motor Vehicles, § 582.

The respondent cites a number of cases as holding that, where the general servant of one person is loaned or furnished to another, he thereupon becomes the servant of the •one for whom the service is being performed and the latter is liable for his negligence. This is no doubt accurate enough *537where tbe servant is placed under tbe control of tbe person for whom tbe work is being done and tbe latter assumes to direct tbe manner of doing tbe work. Most of tbe cases cited are of this class. In some of them this distinction is not very closely observed, but we think it forms tbe true line of demarkation between liability and nonliability. If one arranges with a painter or a carpenter who has several men in bis employ to send a man to do a certain piece of work and points out to such person tbe work which be desires done, but does not undertake to direct, control, or interfere with the manner of doing tbe work, tbe relation of master and servant does not arise, and tbe liability for tbe negligence of tbe servant toward a third party would rest on tbe general employer. *Smith v. Milwaukee B. & T. Exch.*91 Wis. 360, 64 N. W. 1041. On tbe contrary, if tbe party for whom tbe work was being done undertook to direct what should be done and bow it should be done, be would thereby make tbe employee bis own servant and become liable for tbe servant’s negligence in following bis directions. Where a general employer of labor, in response to calls, assigns bis men to do certain jobs, presumably be is making a profit out of their labor by receiving more for it than be pays tbe laborer. There can be little doubt that such employees are facilitating their master’s business while doing tbe work assigned them. Here tbe general employer bad tbe right to hire and discharge tbe employee. Tbe owner of tbe car made no stipulation that any particular employee should do tbe work. Tbe plaintiff offered to prove that tbe garage keeper did not give any authority to tbe owner to control tbe chauffeur and that tbe owner did not assume any control over him except to designate tbe streets over which be desired to pass. Tbe evidence was ruled out by tbe court on tbe ground that it was immaterial. It seems clear that under tbe principle referred to tbe relation of master and servant not only existed between tbe defendant and tbe chauffeur, but also that tbe rule of *538*respondeat superior*applied, assuming tbat tbe proofs offered were forthcoming. There seems to be more reason to hold that there is liability in automobile eases than in livery-stable cases. Most people either know how to drive a horse or how one should be driven and can ordinarily tell when a driver is reckless or incompetent. Many people own automobiles who know nothing about driving them. It requires some degree of experience and skill to do the work safely and properly. Under such a contract as here existed between the owner of the car and the defendant, the owner was obliged to rely on the knowledge and skill of the garage owner to procure a safe and competent driver. We are only concerned with the liability of the defendant, and conclude that it was error to direct a verdict.

*By the Court.*— Judgment reversed, and cause remanded for a new trial.