
    ARTHUR H. PATTERSON v. EDMON ADAN.
    
    November 1, 1912.
    Nos. 17,728—(57).
    Master and servant — negligent driving of automobthe.
    In an action by a servant against his master, for injuries received by reason of the negligence of the latter in the operation of an automobthe in which the servant was riding pursuant to the order and direction of the master, it is held that the evidence upon the question of the master’s negligence in operating the car, the question of the servant’s assumption, of risk and contributory negligence, presented issues of fact for the jury to determine, and that the verdict is supported by sufficient competent evidence.
    Note.—As to liability generally for injury to passenger by negligent operation of automobthe, see notes in 21 L.R.A.(N.S.) 81; 35 L.R.A.(N.S.) 658.
    
      New trial.
    There were no errors in the instructions or refusals to instruct, and the-court did not abuse its discretion in denying a new trial on the ground of misconduct of counsel.
    Action in the district court for Ramsey county to recover $21,000' for personal injuries. The answer alleged that, prior to the accident,, plaintiff requested defendant to permit him to ride in defendant’s automobthe for the pleasure and convenience of plaintiff, and at the-time of the accident plaintiff was so riding voluntarily for his own satisfaction and convenience and at his own risk, and denied that the-accident occurred through any fault or negligence of defendant. The reply denied the new matter contained in the answer.
    The case was tried before Hallam, J., who denied defendant’s motion for a directed verdict, and a jury which returned a verdict in favor of plaintiff for $4,500. From an order denying his motion for judgment notwithstanding the verdict or for a new trial, defendant appealed.
    Affirmed.
    
      Harris Richardson and Walter Richardson, for appellant.
    
      G. D. & R. D. O’Brien, for respondent.
    
      
       Reported in 137 N. W. 1112.
    
   Brown, J.

Action for personal injuries in which plaintiff had a verdict, and defendant appealed from an order denying his alternative motion for judgment or a new trial.

The evidence justified the jury in finding the following facts: Defendant owned and operated a place of business at Bass Lake, near the' city of St. Paul. Defendant also owned an automobthe and used the same in going to and returning from St. Paul to his said place of business. Plaintiff was in his employ, as a chauffeur, electrician and engineer, and was thoroughly familiar with automobthes and was a competent driver. On the early morning of February 13, 1910, defendant ordered plaintiff to accompany him in said automobthe from Bass Lake to the city of Minneapolis. In compliance with such directions plaintiff toot his place in the automobthe, defendant driving the car. The roads and streets were covered with an accumulation of ice and snow, were rough and slippery, and extremely dangerous for the use of such a vehicle. At a point on University Avenue, in the city of St. Paul, the automobthe was overturned and plaintiff received severe injuries.

1. Our examination of the record leads to the conclusion that the ■evidence fully justified the jury in finding that the reckless and careless driving of the automobthe by defendant was the direct cause of the accident, and of a nature to charge him with liability in this .action, unless plaintiff was chargeable with contributory negligence or, in aecompánying defendant under the circumstances shown, assumed the risk of injury likely to result from his operation of the car.

2. Whether plaintiff directly contributed to his injury or assumed the risk were, on the evidence presented, questions of fact and properly submitted to the jury. It is claimed by defendant that he was intoxicated at the time, a fact known to plaintiff, and that plaintiff fook the chances of a safe passage to Minneapolis, and cannot now ■complain. It may be conceded for the purposes of the case that defendant was somewhat under the influence of liquor, and that plaintiff knew it. Put from that it does not necessarily follow, as a matter of law, that plaintiff was guilty of contributory negligence or that he .assumed the risk of injury by complying with defendant’s order and ■direction to accompany him in the automobthe to Minneapolis. The relation of master and servant existed between the parties. Plaintiff was the servant, and, unless defendant was so badly intoxicated as to be incapable of properly running the car, plaintiff’s duty, as such .servant, was to obey the order of the master. The defendant, the master, is in no very favorable situation to resist liability under such ■circumstances, or to be heard to complain that the servant obeyed his •orders. There is no claim that defendant was not competent to drive the ear, the only point made is with reference to his intoxicated condition which, it is claimed, incapacitated him for the time being properly to operate the car. It was also claimed on the trial that plaintiff accompanied defendant on his own motion, and that defendant neither ordered nor requested him to do so. We have read the record fully, and conclude that the evidence upon this, as well as upon all other disputed questions, presented issues of fact for the jury to determine. It would serve no useful purpose to discuss the-evidence in detail We sustain the action of the trial court in upholding the verdict.

3. The instructions of the court sufficiently covered all the issues presented by the pleadings and evidence and there was no error therein, nor in the refusal of certain requests submitted by defendant.

4. The question whether a new trial should be granted because of misconduct of counsel rests in the sound discretion of the trial court, in the exercise of which in this case we discover no abuse. The remarks complained of might well have been omitted, but we concur in the view of the trial judge that no prejudice resulted therefrom.

Order affirmed.

Bunn, J., before whom the first trial was held, took no part.  