Segler v. Callister

HENSHAW, J.

This is an action for damages. An automobile admittedly owned by defendant, came into collision with a motor bicycle ridden by plaintiff. Plaintiff was injured, brought his action, was awarded a verdict by a jury, judgment followed, and from an order denying his motion for a new trial defendant appeals.

The principal point urged on appeal, and the only one here necessary to consider, is that defendant was in no way legally responsible for the injuries sustained by plaintiff. Herein the facts are the following: The automobile had been bought by defendant, who himself could not drive the car, for the purpose of sale. It was an old ear, and he had turned it over to one McAlbin who conducted a small garage. McAlbin was to put it in order, “tune it up,” so that it might be sold, was to receive some small compensation for his services in this regard, and if thereafter McAlbin w'as able to sell it for more than the price Callister put upon it he was to receive a commission accordingly. McAlbin had had. the car in his pos

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session for about a month, working on it at odd times in his efforts to put it in order. The value of his services, together with the garage charges on the car, it was estimated amounted to about eight dollars, which defendant had paid to him, not in money, but in gasoline and oil. Upon a few occasions McAlbin had driven defendant in the car, but without charge for services. He was not employed by defendant as chauffeur or driver, but solely for the indicated purposes. McAlbin worked upon the car only at odd times. Upon Sunday, the day of the injury, McAlbin testifies that he had taken the car out to test it. The water pump was leaking and he sought to locate the trouble. He took the ear out upon his own initiative, without instruction or suggestion from the defendant— indeed without the defendant’s knowledge. While he was thus alone in the car the collision occurred from which plaintiff’s injuries resulted. McAlbin’s testimony is corroborated in all essential respects by that of the defendant and there is in the record no direct contradictory evidence. All the evidence upon which it is sought to hold the defendant responsible comes from the testimony of plaintiff touching statements made to him by McAlbin and defendant. Those statements are the following: Plaintiff testified that he was taken to the hospital and that defendant called upon him that afternoon. Asked if the defendant said anything about the driver of the car, he replied: “No, not anything at all in regard to driving the machine, only he said the machine the driver was driving was his machine. He didn’t say anything at all then about the driver.” Plaintiff further testified that about the second day after he was hurt McAlbin, the driver, came to see him, “and he went on to tell me that he was—this Sunday afternoon he was going somewhere after a trunk or something of that kind with this machine, that they were fixing to go out and make a trip somewhere, he and Mr. Callister I believed. In some way he was going after this trunk to bring back to fix up, you know for this trip. They were fixing—trying to get the machine ready, or fixing on the machine, to get it in condition to go, to make the trip. So that was all, I believe, that he had to say in regards to that.” Plaintiff further testified that afterward, upon a certain day, he had a talk with the defendant on the beach, “a little talk—a friendly talk.” Defendant said that McAlbin “had been with him a good