gasoline can with which to purchase and secure high-test gasoline, it is held, for reasons stated in the opinion, that the evidence was insufficient, as a matter of law, to establish that such conductor was then acting within the scope of his employment or was seeking to purchase gasoline for railway purpose, and, further, that the questions of the conductor’s negligence and the contributory negligence of the manager of the oil station were questions of fact for the jury.
Opinion filed Feb. 17, 1922.
Action in District court, Ward county; Leighton, J.
Plaintiffs have appealed from a judgment entered upon a directed verdict.
Affirmed as to the carrier; reversed and new trial granted as to the conductor.
McGee and Goss, for appellant.
“An act is within the scope of the servant’s employment where necessary to accomplish the purpose of his employment and intended for that purpose, although in excess of the powers actually conferred on the servant by the master. The purpose of the act, rather than its method of performance is the test of the employment.” 26 Cyc. 1534; 18 R. C. L. 795, § 254: Galehouse v. Soo, 22 N. D. 615, 135 N. W. 189, 47 1. R. A. (N. S.) 965; Wingen v. Soo Line, 42 N. D. 517, 173 N. W. 832; Froelich v. P. Ry. Co. 42 N. D. 550, 173 N. W. 822.
“Prima facie, when the act is one which the master himself might have done, it will be presumed that it was an act within the scope of the servant’s authority, and the burden of proving want of authority rests upon the defendant.” Seybold v. Eisle, (Iowa) 134 N. W. 578; Citing Wood on Master and Servant, p. 559; Jackson v. Railroad Company, 47 N. Y. 274, 7 A. R. 448; Higgins v. Turnjike Co. 46 N. Y. 23, 7 A. R. 293; Cosgrove v. Odgen 49 N. Y. 255, 10 A. R. 361; Schulte v. Holliday, 54 Mich. 73, 19 N. W. 752.
Palda & Aaker, for respondents.
“Facts affirmatively established by tangible proofs, not conjectures, are essential to a right of recovery. Evidence that leaves the jury to roam at will in the field of conjecture and speculation to find a verdict
