Opinion
Decided January 4, 1938.
On the issue of agency, the testimony of the alleged agent is competent. Certain evidence justified the conclusion that the defendant owned a truck which was so negligently driven by his agent on his business that a, collision was caused with the plaintiff's automobile.
CASE, for negligence resulting in a collision between the automobile of the plaintiff and a truck alleged to belong to the defendant. The plaintiff's car was at the time being driven upon a public highway by Elmer Sanborn, a licensed operator to whom it had been loaned by the owner. The truck was employed in plowing snow from the highway. Trim by jury. When the plaintiff rested, the defendant moved for a nonsuit on the ground that there was no evidence as to who drove the truck or that it was owned by the defendant or being used on his business. Upon the granting of the motion, the plaintiff moved to reopen the case and his motion was granted. The depositions of Rupert D. Bragg and another were then offered and received, and the plaintiff again rested. The defendant renewed his motion for a nonsuit, which was granted subject to exception upon the parties agreeing that if the exception should be sustained the plaintiff should have judgment for $75.
Transferred by Sawyer, C. J.
Alvin F. Wentworth, for the plaintiff.
Jewett Jewett, for the defendant.
The testimony of Rupert Bragg that he was driving the truck at the time of the accident, that the State hired it from, Dane, and that he worked for Dane, would have warranted the jury in finding that the defendant owned the truck and that Bragg was driving it as his agent and on his business. The evidence that Bragg stopped the truck as Sanborn approached and that Sanborn attempted to pass, whereupon Bragg started again and skidded into the plaintiff's car, together with evidence that Bragg had skidded at the same place earlier the same day and knew the condition and tendency of the roadway, would have justified a finding of Bragg's negligence. The defendant's position that Bragg had no authority to bind the defendant by his testimony upon the issue of his agency is not tenable. Riley v. Bank, 86 N.H. 329, 331, and cases cited.
Judgment for the plaintiff.