
    LIABILITY OF OWNER OF AUTOMOBILE FOR DEATH OF PEDESTRIAN.
    Circuit Court of Hamilton County.
    The White Oak Coal Company v. Katherine Rivoux, Administratrix.
    Decided, May, 1912.
    
      Master and Servant — Whether Servant Was Acting Within Scope of Sis Employment a Question for the Jury — Wrongful Death— Weight of Evidence.
    
    The question whether the driver of the automobile which struck and killed the intestate, was acting at the time of the accident within the scope of his employment, or outside thereof in a personal enterprise, is one for the jury; and a judgment against the owner of the machine will not be reversed on the weight of the evidence, in view of the testimony of the driver that he was going on a personal errand at the time of the accident, where goqd reason is found in tire record for disbelief of liis evidence on the part of the jury.
    
      Pack, Shaffer & Peck, for plaintiff in error.
    
      Horstman & H or siman, contra.
    The defendant in error recovered a judgment below for $3,-100, on account of the death of her husband from being struck, while standing on the sidewalk on Fourth avenue, Cincinnati, by an automobile which left the' street and mounted the sidewalk. The machine was owned by the White Oak Coal Co. and was being operated at the time of the accident by a young man in their employ.
    Jones, J.; Smith, P. J., and Swing, J., concur.
   The plaintiff below having shown that the automobile was the property of defendant and that Tribbejq the driver,_ was in defendant ’s employ the burden was then placed upon defendant to show that at the time of accident Tribbey was acting outside the scope of his employment in a personal enterprise.

He testified that he was so acting and that he was inspecting the machine preparatory to going on a personal errand later m the day. Whether he was so engaged at the time was a question of fact properly left for determination to the jury. They were not bound to believe Tribbey’s statement and evidently did not. It was clearly shown that his evidence before the coroner was in conflict with his testimony at the trial, not only with reference to the circumstances of the accident but as to the nature of his employment and the duties devolving upon him.

In view of his conflicting statements the jury must have disregarded his testimony. The question as to whether he was manager at the time, or in a position of superiority, is immaterial and not entitled to the consideration given it by counsel in the discussion of the case.

We can not say that the verdict was manifestly against the weight of the evidence. After a careful reading of the record and the excellent briefs of counsel, we are of the opinion that the judgment should be affirmed. (Thompson on Negligence, Sections 613, 614, 615, 616). In Ohio the question is one for the jury. 67 O. S., 91.  