
    BABBITT v SAY Admr
    Ohio Supreme Court
    No 21426.
    Decided Mar 13, 1929
   Syllabus by

DAY, J.

NEGLIGENCE-Trial (590 V2c)

(370 C2) In the trial of an action- for damages for death by wrongful act, upon a motion being made by defendant for a directed verdict at the close of plaintiff’s case, upon the ground of the contributory negligence of the decedent, the evidence should be given the most favorable interpretation in behalf of plaintiff, and, if a reasonable inference may be- drawn from such evidence that the decedent was exercising due care, such motion should be overruled and the question of contributory negligence submitted to the jury, under proper instructions.

TRIAL

(590 W3g) A witness may be cross-examined with reference to a written statement previously made and signed by him, concerning the facts under investigation; and where the record discloses the contents of such paper is incorporated piecemeal in questions propounded to the-witness in the presence of the jury, together with his answers thereto, the witness admitting making every statement contained in such writing, it is not prejudicial error to refuse admission of such written^ statement in connection with the cross-examination of such witness, there being no denials that would show contradiction and thus lessen the credit of the witness.

NEGLIGENCE

(370 R2) The rule of respondeat superior rests on the power which the superior has a right to exercise and which, for the protection of third persons, he is bound to exercise over the acts of his subordinates^ It does not apply where the power of control does not' exist and, in the absence of an agreement to the contrary, the power does not ordinarily exist where there is no right of selection or discharge of such subordinate.

AUTOMOBILES

. (50 Na2) Where an owner of an automobile truck hires it out, together with the driver as a unit, at a stipulated price per hour, furnishes gasoline, oil and service to keep such truck in proper mechanical condition, selects and pays the driver and is the only one who can discharge such driver, and while the hirer -may dispense with the services of such truck .and driver as a unit, he has no such exclusive control over the driver that permits him to do more than to designate what work is to be done, under such circumstances the owner is liable in damages to a third person for injuries proximately caused by the driver’s negligent operation of the truck, within the scope of such employment.

Marshall, CJ, Robinson, Jones, Matthias and Allen, JJ, concur.  