NEGLIGENT DRIVING BY A SERVANT. 315 



If an injury is caused by the negligence of the driver 

 whilst wrongfully using the cab, or doing anything contrary 

 to the terms of the bailment as between himself and the 

 proprietor, the latter will not be liable, as his liability only 

 exists with respect to acts done by the driver within the 

 scope of his employment. Where a driver, who had no 

 specified time for starting or returning to the proprietor's 

 stables, made a short deviation, for his own convenience, at 

 the close of his day's work, and while returning to the 

 stables, and after such deviation, he was again returning 

 when he ran over and injured the plaintiff ; it was held, that 

 the driver was not on an independent journey, and must be 

 considered to be in the proprietor's employ at the time of 

 the accident (A). In that case it was contended on behalf 

 of the proprietor that the driver was not acting within the 

 scope of his employment, and Cockburn, C.J., said («'), "To 

 determine whether the driver was so acting or not, it is 

 necessary to consider what the terms were upon which the 

 cab was entrusted to the driver. If the employment of the 

 cab by the driver at the time when the mischief was done 

 was wrongful, in the sense that it was beyond the scope of 

 the bailment, then the master would not be responsible ; 

 because it is with regard to the employment of the cab 

 within the scope of such bailment that the relation of 

 master and servant is created by the statutes for the protec- 

 tion of the public. But it appears that the cab was 

 entrusted to the driver to use entirely at his discretion, 

 provided that he used it properly and returned it to the 

 proprietor's stables when the day's work was over, paying 

 the sum agreed upon between them for the hire of it. I 

 cannot see that the driver did anything wrongful, or 

 contrary to the terms of the bailment as between himself 

 and the proprietor." 



Where in an action for personal injury against a cab 

 proprietor it appeared that the plaintiff was knocked down 

 and injured by a cab belonging to the defendant, the licensed 

 driver being inside drunk, and the vehicle being driven by 

 an unlicensed man also drunk, but not the servant of the 

 defendant, a nonsuit was ordered to be entered (k). 



In Smith v. Bailey {I) it was sought to extend the con- Liataity of 

 struction placed on the Hackney Carriages Act in the cases "" 



(;») Venahles y. Smith, ubi supra. {I) [1891] 2 Q. B. 403 ; 60 L. J., 



(i) 2 Q. B. D. 283. a B. 779; 65 L. T., N. S. 331; 



{/c) Mann v. Ward, 8 Times L. E. 40 "W. R. 28— C. A. 

 699. 



owner of 

 traction en- 

 gine. 



