HITIING HORSES. 257 



that course. But tlie evidence does not stop there ; for 

 the defendant, some time after the accident, in a con- 

 versation with one of the witnesses, said that he intended 

 to have stopped when the Carriage had established itself 

 in the line, and allowed the gig to regain its place. Now 

 that remark showed pretty strongly that the defendant 

 was exercising control over the motions of the postboys, 

 and was an assenting party to their act. I therefore 

 think the defendant, the dominus pro tempore, being pre- 

 sent and seeing what was going on, and not interfering 

 to prevent the mischief, must be taken to have been an 

 assenting party ; and that this case falls within the prin- 

 ciple laid down in Gregory v. Piper (/) and Chandler v. 

 BrougJiton {u), in which latter case it was held that where 

 master and servant are together in a Vehicle, and an ac- 

 cident occurs, from which an immediate injury ensues, 

 the master is liable in Trespass and not in Case, although 

 the servant was driving, and not only no evidence was 

 given on the part of the plaintiff of any interference on 

 the master's part, but the evidence on the part of the 

 defendant distinctly negatives any interference ; so that 

 the mere presence of the master with the servant will 

 constitute him a trespasser, if the act of the servant 

 amount to a trespass. Upon the whole, therefore, in this 

 case, I think the Jmy may have come justly to the con- 

 clusion that the defendant was a co-trespasser with the 

 postboys." And in this decision Coltman, Erskine and 

 Cresswell, Justices, concurred (.r) . 



It is always a question for the Jmy whether the driver The Jury 

 is acting as servant for the Hirer or Owner; and Lord must<iecide 

 Abinger, in leaving that point to the Jury, observed, servant is 

 "that no satisfactory line could be drawn, at which, as acting for the 

 a matter of law, the general owner of a carriage, or ^^^^^' "^'^ 

 rather the general employer of a driver, ceased to be 

 responsible, and the temporary Hirer to become so ; each 

 case of this class must depend upon its own circum- 

 stances" [y). 



A Hirer may of course, by agreement, make himself A^ Hirer's 

 answerable for accidents. Thus in the following case it ° 

 appeared that a man who let out Horses to hire told a 



(0 Gregonj v. Tlpcr, 9 B. & C. (.r) M'LaurjUin v. Pnjor, 1 C. & 



591 ; 4 M. & E. 500. Marsh. 354 ; ^5'. C. 4 Scott, N. R. 



(«) Chandler v. Broughtou, 1 C. & 655 ; 4 M. & G. 48. 

 M. 29. (y) Brady v. Giles, 1 M. & Rob. 



49(5. 



0. S 



