A master is responsible for an injury resulting from the negligence of his servant whilst driving his cart or carriage, provided the servant is at the time engaged in his master’s business, even though the accident happens in a place to which his master’s business did not call him: but, if the journey upon which the servant starts be solely for his own purposes, and is undertaken without the knowledge or consent of his master, the latter is not responsible. The defendants’ carman, having finished the business of the day, returned to their shop in Welbeck Street, with their horse and cart, and obtained the key of the stable, which was close at hand; but, instead of going there at once, and putting up the horse, as it was his duty to do, he, without his masters’ knowledge or consent, drove a fellow workman to Euston Square ; and, in his way back, ran over and injured the plaintiff and his wife. Held, that, inasmuch as the carman was not at the time of the accident engaged in the business of his masters, they were not responsible for the consequences of his unauthorised act. The declaration alleged that ‘the defendants were possessed of a certain cart and horse, which was being driven by and under the care and direction of their servant,’ –not saying, at the time of the grievances complained of; and that, ‘whilst the plaintiff was crossing a certain street, andc., the defendants, by their servant, so negligently and improperty drove and directed the said cart and horse along the said street, that the plaintiff was knocked down and injured. Held, that the first allegation was immaterial, and not traversable ; and that, under (‘not guilty,” the defendants might shew that the driver was not at the time of the accident acting as their servant. Quaere, as to the power of the judge to add a plea at the trial, under the 222nd section of the common law procedure act, 15 and 16 Vict. c, 76.
Citations:
[1853] EngR 174, (1853) 13 CB 237, (1853) 138 ER 1189
Links:
Personal Injury, Vicarious Liability
Updated: 02 May 2022; Ref: scu.294160
