Boland v. Gay 201 Ill. App. 359

Evelyn Boland, Appellee, v. George J. Gay, Appellant.

(Fot to be reported in full.)

Appeal from the Circuit Court of Vermilion county; the Hon. E. R. E. Kimbrough, Judge, presiding. Heard in this court at the October term, 1915.

Affirmed.

Opinion filed April 21, 1916.

Rehearing denied June 30, 1916.

Statement of the Case.

Action "by Evelyn Boland, plaintiff, against George J. Gay, defendant, to recover for personal injuries sustained by the plaintiff while riding in a taxicab belonging to the defendant. From a judgment for plaintiff, defendant appeals.

Defendant insisted that the chauffeur of the taxicab was not acting within the scope of his employment and on his master’s business at the time of the accident. He admitted that Small was employed by the week to run the machine in the nighttime, and that it was his duty to go where the business required. He also admitted that when he left on a trip he authorized Small to go ahead with the business, and that while his hours were from two o’clock in the afternoon to two o’clock in the morning, he some nights ran until three and at times up to four, o’clock in the morning, and that he would accept what was earned. The taxicab office was in the defendant’s hotel and whoever answered the telephone calls in the hotel had authority to take the call. Plaintiff, by telephone from Lyons, called the hotel for the taxicab about 2 a. m. and the taxicab appeared to have been sent in response to the call. Small stated he went with the machine to Lyons for a ride without being called by telephone, and that he was going to keep the fare collected and not pay it to defendant. Small employed a lawyer to prosecute a claim against the defendant for injuries he sustained *360at the time of the accident, and received one hundred dollars from the hands of his attorney.

Abstract of the Decision.

1. Carriers, § 484*—when instruction on liability of taxicab carrier correct. In an action for personal injuries sustained by a passenger riding in a taxicab, an instruction that “common carriers of persons for hire are required to do all that human care, vigilance and foresight can reasonably do, consistent with the character and mode of conveyance adopted and the practical prosecution of the business, to prevent accidents to passengers while being carried by them,” held to state the correct rule as to the liability of a carrier of passengers by taxicab.

2. Carriers, § 8a*—who is common carrier. In an action for personal injuries sustained by plaintiff while riding as a passenger in the defendant’s taxicah, evidence held to show that the defendant held himself out as a common carrier of passengers.

3. Principal and agent, § 8*—when evidence sufficient to show acts by servant within scope of employment. In an action for personal injuries sustained by the plaintiff while riding as a passenger in the defendant’s taxicab, evidence held to show that the defendant’s chauffeur was acting within the scope of his employment at the time of the accident.

Dwyer & Dwyer, for appellant.

Thomas A. Graham, for appellee.