Samuels v. Hiawatha Holstein Dairy Co.

Citations

• 115 Wash. 343
• 197 P. 24
• 1921 Wash. LEXIS 730

Syllabus

<p>Master and Servant (172, 182-1)—Liabilities for Injuries to Third Persons—Scope of Employment—Questions for Jury. The existence of the relation of master and servant is a question for the jury, in an action for personal injuries resulting from being run down by defendant’s motor truck, although the driver testified he was using it out of business hours in his own private affairs without authority of the defendant, where he was contradicted by circumstantial evidence showing he was at the time engaged in defendant’s business.</p> <p>Evidence (53) —Competency-—Res Gestae — Statements After Event. Declarations made by the driver of defendant’s automobile truck, almost immediately after running down the plaintiff while preparing to board a street car, that there was rain on the windshield of his car and he did not see her, and that he was speeding at the street corner and passing the street car because he was in a hurry to complete his deliveries and check in, were admissible in view of the fact he was operating the car in the business of defendant; and though not introduced in proper order, was without prejudice, since it was competent as rebuttal evidence controverting the testimony of the driver.</p> <p>Master and Servant (183) —-Liability for Injuries to Third Persons—Instructions. In an action for personal injuries caused plaintiff by the driver of defendant’s automobile truck, it is proper to instruct that, whenever the presumption of operation of the motor truck by the owner exists by reason of ownership, the burden is cast upon the owner to overcome such presumption by competent evidence, the- court by other instructions having informed the jury that the burden of sustaining all of plaintiff’s affirmative allegations remained upon her throughout the trial.</p> <p>Appeal (456)—Review—Error Cured by Striking Out. Testimony by a witness for plaintiff on cross-examination that the driver of defendant had stated to him that the defendant had insurance, was without