
    Benschoter et al. v. The New York Central Rd. Co.
    (Decided May 28, 1928.)
    
      Messrs. Ritter db Brumbach and Mr. George E. Taylor, for plaintiffs in error.
    
      Messrs. Doyle db Lewis and Mr. Robert Newbegin, for defendant in error.
   Richards, J.

On May 4, 1923, Louis Benschoter was the owner of a Republic 3%-ton motor truck, which was loaded with 5 tons of crushed stone and being driven north bn the public highway extending through the town of Holland in Lucas county. The tracks of the defendant railroad company extend east and west through the station of Holland, intersecting the highway at a considerable elevation above the surrounding country. On the afternoon of the date named, the truck was being operated by Burt Bowser, and when he approached the railroad crossing at Holland it became necessary, in order to make the ascent, to put the track in low speed, on account of the heavy load and the grade of 6 per cent, or 7 per cent., and as the truck reached the top of the incline it was traveling at not more than 2 or 3 miles an hour. In crossing the track the truck was struck near the center and entirely destroyed by a west-bound passenger train traveling on the north track at the rate of about 60 miles an hour, and the driver was instantly killed.

The plaintiff Louis Benschoter brought an action against the railroad company to recover the value of the truck, and united with him, as coplaintiff, an insurance company which was carrying a policy on the track and had paid a large sum thereon by reason of the loss, taking a pro rata assignment of an interest in the claim against the railroad company, the total amount claimed by.the two plaintiffs being $4,500, as the value of the truck. The trial resulted in a directed verdict and a judgment thereon in favor of the defendant, and to reverse that judgment this proceeding in error is brought.

The plaintiffs rely on the claim that the view of a traveler approaching from the south was obstructed by buildings, and by certain box cars claimed to be standing on a siding south of the main tracks and east of the highway, by reason of which obstructions it is claimed to have been impossible to see a train approaching the crossing until the traveler reached the main tracks. As grounds of negligence, the plaintiffs contend that the defendant, in violation of the statute, failed to sound a whistle or ring the bell, and failed to maintain a flagman, or gates, or an automatic signal.

In view of the fact that the trial court directed a verdict in favor of the defendant, it is only necessary to say, so far as the claimed negligence of the defendant is concerned, that the plaintiffs introduced evidence tending to show a violation of the statute in failing to ring the bell and sound the whistle. There being such testimony in the case, the directed verdict could not properly be based on a claim that no evidence was introduced tending to show negligence on the part of the defendant.

The answer to the second amended petition avers that the collision was caused solely by the negligence of the plaintiff himself, through his agent, the driver who was operating the truck, in that the driver drove the truck upon the crossing immediately in front of defendant’s train, without stopping or looking or listening or taking any precautions to avoid a collision. This averment raises the two important questions in this case: First, whether the driver of the truck was so negligent; and, second, if.so negligent, whether he was at the time the agent or employee of the owner of the truck and engaged in his business.

Some controversy exists as to whether cars were standing on a side track south of the crossing at the time in question, but for the purposes of this opinion we shall assume that cars were thus located. There were some other obstructions south of the track, which would at times obstruct the view of a train approaching from the east by a traveler proceeding north on the highway. At this crossing were two main tracks and one side track. The train which collided with the truck was on the north one of the two main tracks. Even if cars were on the siding east of the highway, when a traveler proceeding north had reached a point 25 feet south of the westbound, high-speed track, he could see east down the track a distance of 550 feet. The main tracks in each direction were perfectly straight, and as he approached the track and reached a point immediately south of the track he could see to the east for several miles. The driver of another truck was following immediately behind Bowser, and from his uncontradieted testimony it appears that the Benschoter truck proceeded up the ascent at not more than 2 or 3 miles an hour, and when it had reached the top of the ascent the driver could have seen to the east more than 500 feet and the truck could have been almost instantly stopped. Bowser was entirely familiar with this crossing, having been over it many times, and there was- nothing to prevent his' looking and listening, and if he had looked and listened for an approaching train he must have discovered the approach of this train in time to have stopped the truck and prevented the collision. Under the doctrine announced by the Supreme Court in Detroit, T. & I. Rd. Co. v. Rohrs, 114 Ohio St., 493, 151 N. E., 714, no other conclusion could be reached than that the driver of the truck was guilty of negligence which directly caused the collision.

The question remains, however, whether he was at the time the agent or employee of Benschoter, and engaged in his business. The evidence on this subject comes wholly from Benschoter himself, and it shows that he himself never drove the truck, but purchased it to be driven by his brother-in-law, Bowser, who had charge of the truck from the time it was bought and took care of it for the plaintiff. If there were any adjustments or repairs to be made, Bowser bad them made for Benschoter at a garage. Bowser was employed and had been employed by Benschoter at $30 per week to operate the truck. In the fall, before the collision, Benschoter had an agreement with Johnson, Van Wagner & Johnson to haul crushed stone for them on the Angola road, and in fulfilling that contract he was to provide a truck and Bowser as the driver, and was paid per ton mile for the crushed stone hauled, and knew that the stone was to be hauled on the Angola road, which necessitated crossing the tracks of the defendant company. In the spring the same arrangement was renewed between Benschoter and Johnson, Van Wagner & Johnson, with Bowser again as the operator of the truck, and Benschoter testifies that he told Bowser to go there with the truck and do whatever Johnson wanted him to do, and that he knew it was to be the hauling of crushed stone on the Angola road. While Bowser was operating the truck in hauling stone, he received the same compensation from Benschoter, $30 per week. Benschoter testified that, after the truck was taken by Bowser to Johnson, Van Wagner & Johnson, he did not know who directed the handling of the truck, but supposed it was done by the foreman on the job; that he himself had nothing to do with it at all. This testimony in relation to the employment and service of Bowser is not contradicted. If Bowser was at the time of the collision an employee or agent of Benschoter, acting within the scope of his authority, then Benschoter would be liable for his negligence, and the court was right in directing a verdict. On the other hand, if he was at the time the employee or agent of Johnson, Van Wagner & Johnson, and engaged in the performance of his duties for them, then Benschoter would not be liable for his negligence, and the court was not justified in directing a verdict.

From the record it is perfectly clear that Benschoter was the general employer of Bowser and had the right to discharge him should occasion arise. Bowser was driving the truck in furtherance of Benschoter’s business, which was to rent the truck, with Bowser as driver, and receive his compensation at the price per ton agreed upon. Bowser was the regular driver of the truck, employed by Benschoter for that purpose, and a presumption would exist that he was acting within the scope of his employment, and so operating the truck in furtherance of his master’s business. While Johnson, Van Wagner & Johnson had the right to give directions about the hauling of the crushed stone, the duty of Bowser to use care in the operation of the truck for its protection was a duty which he owed to his employer, Benschoter. This holding is consistent with the decision in Braun v. Averdick, 113 Ohio St., 613, 150 N. E., 41, in which ease, however, the operator of the truck was not operating it in furtherance of the business of the defendant and was being compensated by other parties. An instructive case, quite parallel with the one at bar, is Gechei v. Boltz, 13 Ohio App., 180. In that case an undertaker had hired limousines and their drivers of a liveryman for use at a funeral, and, while the undertaker directed the drivers where to go and whom to take, it was held that the driver remained the general servant of the liveryman, who was alone responsible for his negligence.

- In other jurisdictions the courts are not uniform in their holdings as to liability in cases of this character, but the better reasoning and the greater weight of authority appear to be that under the circumstances existing in this case the operator of the motor truck remained the servant of his general employer, who would be liable for his negligent acts. The following cases illustrate the principle under varying facts: McNamara, Admr., v. Leipzig, 227 N. Y., 291, 125 N. E., 244, 8 A. L. R., 480, in which it was held that a servant, let by his master to another, does not become the servant of the other because the other directs what work is to be done, or in what way it is to be done. See Braxton, Admr., v. Mendelson, 233 N. Y., 122, 135 N. E., 198; Charles, Admr., v. Barrett, 233 N. Y., 127, 135 N. E., 199; Wagner, Admr., v. Motor Truck Renting Corp., 234 N. Y., 31, 136 N. E., 229; Densby v. Bartlett, 318 Ill., 616, 149 N. E., 591, annotated in 42 A. L. R., 1406, 1416; Bartolomeo et al., Admrs., v. Charles Bennett Contracting Co., 245 N. Y., 66, 156 N. E., 98.

Although Bowser was loaned by his general employer to another, he was still engaged at the time of the collision in the performance of his employer’s business, and such employer continued responsible for his negligent acts.

For the reasons given the judgment will be affirmed. .

Judgment affirmed.

Williams and Lloyd, JJ., concur.  