Dissenting Opinion by
Mb. Justice Bell :Plaintiff was properly nonsuited. Defendant was in tbe business of repairing and towing automobiles and was authorized by tbe Pennsylvania Turnpike Commission to operate a service truck on tbe Turnpike. James Phillips, Jr., the plaintiff, was at tbe time of tbe accident 9 years and 11 months old. Phillips was a cousin or nephew of Anthony J. Gaudio. Gaudio was *401an employee of defendant on August 27, 1957, the date of the accident, but not at the time of the trial. He was employed to drive one of defendant’s towing trucks on the Turnpike. Gaudio’s work was monotonous; sometimes he would not have anything to do for several days, other times he would be extremely busy. To relieve his monotony Gaudio would often take people to ride with him. Gaudio not only was not permitted to take companions, he was prohibited from taking friends or companions with him.
Plaintiff on re-direct examination read into the record as substantive evidence on the question of the employer’s knowledge and his liability, a statement given by Gaudio three weeks after the accident. Gaudio stated therein that he had been told by Flam “Nobody to ride in the truck except those people who are broke down, or personnel from the garage.” On cross-examination Gaudio had testified that he was instructed by his employer after the accident not to haul anybody. The trial Judge entered a nonsuit because he was of the opinion that there was no express or implied authority given by the defendant, the employer, to Gaudio to take persons with him in the truck for his pleasure or comfort and consequently Phillips was a trespasser, not a business invitee, and there was no evidence of wanton negligence.
Before further discussion of the facts, we shall state the applicable principles of law.
A nonsuit may be entered only in a clear case, and in considering the entry or the removal, or the reversal of a nonsuit the evidence must be considered in the light most favorable to the plaintiff and he must be given the benefit of every reasonable inference of fact arising therefrom and any conflict in the evidence must be resolved in his favor: Castelli v. Pittsburgh Railways Company, 402 Pa. 135, 165 A. 2d 632; Bor*402zik v. Miller et al., 399 Pa. 293, 159 A. 2d 741; Freund v. Huster, 397 Pa. 652, 156 A. 2d 534; Sebum v. Luzerne & Carbon County Motor Transit Company, 394 Pa. 577, 148 A. 2d 534.
This case is ruled by Borzik v. Miller, 399 Pa. 293; Reis v. Mosebach, 337 Pa. 412, 12 A. 2d 37; Muroski v. Hnath, 392 Pa. 233, 139 A. 2d 902. In the Borzik case, Borzik was hired by defendants as a salesman whose territory covered numerous states. Defendants gave Borzik one of their automobiles to drive in furtherance of their business. He was also allowed to drive it for his personal pleasure. On the evening of the accident Borzik picked up the plaintiff, his girl friend, at the place where she worked and drove to a night club, hoping to sell a car to the owner of the night club. Before arriving at his destination he collided with another automobile. The evidence was sufficient for the jury to find that Borzik was on his master’s business and that the collision was due to his negligence. Plaintiff further proved that at times she assisted Borzik in delivering the defendants’ cars and that defendants knew plaintiff had ridden with Borzik in the past when he went to see prospective customers, and did not object. Nevertheless the Court held that the presence of Borzik’s friend in defendant’s car at the time of the collision was not in furtherance of the employers’ business, and the evidence was not legally sufficient to impose liability upon Borzik’s employers.
The Court said, inter alia, (pages 295-297) : “In Reis v. Mosebach, 337 Pa. 412, 12 A. 2d 37, the employer had given tacit consent or acquiescence to their employee’s custom of taking a rider along with him. In denying liability upon the employer the Court aptly said (page 414) : [Quoting from Hughes v. Murdock Storage & Transfer Company (No. 1), 269 Pa. 222, *403112 A. 111]* . . . To sustain, a recovery under these circumstances, it should appear that the act of the driver in permitting the boy to ride, was fairly within tho scope of his employment: Wind v. Steiert & Son, 71 Pa. Superior Ct. 194; Byrne v. Pittsburgh Brewing Co., 259 Pa. 357; Scheel v. Shaw, 60 Pa. Superior Ct. 73. If he so acted, the master owed a duty through his agent to see that no negligent act should happen that might injure the invitee. The test is not that, when the invitation was given, he was engaged in the course of his employment in his master’s business, but was the invitation or its consequences in furtherance of the master’s business,** so that it might be said to be impliedly within his authority? The master is bound by the acts of his servant in the course of his employment but he is not bound by those outside of such employment. The servant (a truck driver) has no right to impose upon his master’s onerous liability by holding him responsible for the safe carriage of any person he may see fit to accept as a passenger. . . . If there was some risk in riding, the passenger assumed whatever risk there was . . . He had no implied authority to permit boys to ride on his truck and acted beyond the scope of his employment when he did so.’
“Reis v. Mosebach was affirmed as recently as 1958 in Muroski v. Hnath, 392 Pa. 233, 139 A. 2d 902. In that case this Court entered a judgment non obstante veredicto in favor of an employer when its *404employee became tired and asked Ms friend to drive the rest of the way back to tbe office. The friend drove negligently and as result of a collision plaintiff was killed. The Court held that an employer is liable for a stranger’s negligence only if its employee had express or implied authority to engage a friend to drive the automobile or if the friend’s employment because of an emergency, was reasonably necessary for the performance of the employer’s work. The Court said, inter alia:
“ ‘In Corbin v. George, 308 Pa. 201, 162 A. 459, the Court said (page 204) : “The relation of master and servant cannot be imposed upon a person without his consent, express or implied. The exception to this rule is that a servant may engage an assistant in case of an emergency, where he is unable to perform the work alone: [Citing cases].” ’ ”
Borzik v. Miller is a far stronger case for plaintiff than the instant case. On the day of the accident Gaudio in his own automobile stopped at the home of Ms cousin PMllips in Beaver Falls and took him to Gaudio’s place of employment at the Turnpike. At noon Gaudio took the boy to a restaurant. At luncheon Gaudio told Bushless that he was taking the boy with him on the Turnpike.* We agree with the lower Court that knowledge on the part of Bushless and Flam that Gaudio sometimes took people with him for company, and knowledge on the part of Bushless of the presence of the boy with Gaudio in defendant’s truck on the day of the accident was not notice to the employer, nor evidence from which a jury would be justified in finding an implied authority by defendant to Gaudio to transport this boy, or any other persons, for Gaudio’s pleasure. Cases supra.
*405It is clear from the foregoing authorities that Phillips was not engaged in the execution or furtherance of the defendant’s business, and so far as the defendant was concerned he was a trespasser. Since plain tiff was a trespasser, it is well settled that defendant would be liable only if Gaudio the driver was guilty of wanton negligence in injuring his young cousin. Gaudio after taking Phillips to lunch went to tow a Buick which had broken down and was on the berm of the Turnpike. He stopped his tow truck about ten feet in front of the Buick. He told Phillips to let him know when his plate touched the bumper. When Phillips hollered “Ho”, Gaudio stopped his truck and got out to put the crane into operation. He then said to Phillips “Get out of the way; I don’t want nothing to happen — stand clear.” Phillips got out of the way and stood on the ground and clear of the truck and the Buick. Gaudio lay down under the Buick and hooked up his chains to the frame of the Buick; this took about 10 to 15 minutes. Phillips was still standing on the ground. Phillips testified that after Gaudio started to hook the truck on to the frame of the Buick, “He told me to get out of the way . . ., so I stepped out. ... I went up to the front and got a pair of gloves, . . . put them on, . . . Then I went around back of the truck, . . . climbed up onto the [back of the] truck, . . . holding on to the cable, . . . to see how he [Gaudio] did it [hooked the Buick]. . . . [I was] about two or three feet away . . . and when the cable started to move my hand got caught in the thing.” From the time Gaudio started hooking the chains on to the frame of the Buick he didn’t see Phillips again until after the accident, although if he had looked up from his work he undoubtedly would have seen him.
When Gaudio got the chains hooked he raised the levers and concentrated on the job of seeing that the *406cable properly and skillfully picked up the Buick car. When the mechanism started, Phillips suddenly hollered “Uncle Tony, my thumb.” Gaudio was then about two feet away from Phillips but because of his concentration in raising the Buick had not seen Phillips. When he saw Phillips’ thumb he stopped the cable and reversed it as soon as possible “so [Phillips’ hand] wouldn’t get hurt.” Then Gaudio grabbed Phillips’ wrist in such a way as to stop the blood, hollered to someone to get an ambulance and took him to the hospital. There isn’t the slightest evidence that plaintiff’s injuries were wantonly or wilfully inflicted; on the contrary, the evidence indicates solicitude, love, concern and care by Gaudio for the safety of Phillips.
Cf. Zawacki v. P.R.R. Co., 374 Pa. 89, 97 A. 2d 63; Stewart v. Pittsburgh Railways Co., 379 Pa. 260, 108 A. 2d 767; Engle v. Reider, 366 Pa. 411, 418, 77 A. 2d 621.
In Zawacki v. Pennsylvania R.R. Co., 374 Pa. 89, plaintiff was nonsuited in a claim for injuries suffered in a collision between defendant’s train and plaintiff’s truck. Plaintiff claimed, inter alia, that defendant was guilty of wilful and wanton misconduct. This Court affirmed the judgment of nonsuit and said (pages 91-92) : “. . . plaintiff can succeed only if the defendant’s employes were guilty of wanton misconduct.
“e. . . wanton misconduct is something different from negligence however gross, — different not merely in degree but in kind, and evincing a different state of mind on the part of the tortfeasor. Negligence consists of inattention or inadvertence, whereas wantonness exists where the danger to the plaintiff, though realized, is so recklessly disregarded that, even though there be no actual intent, there is at least a willingness to inflict injury, a conscious indifference to the perpetration of the wrong:’ Kasanovich, Admrx. v. George, *407et aL, Trustees, 348 Pa. 193, 203, 34 A. 2d 523. ‘. . . the cases in which, wanton misconduct was found to exist were those in which the tortfeasor had actual knowledge of a victim’s peril but nevertheless pursued his tortious course with utter indifference to the outcome’: Engle v. Reider, 366 Pa. 411, 418, 77 A. 2d 621 (Italics supplied). Therefore there is nothing’ in this ease to bring the plaintiff within the protection of the rule as to wanton misconduct. The most that can be said is that the engineer’s failure to see the truck was the result of careless inattention, thus convicting Mm of negligence. There is no evidence that defendant knew that plaintiff was in a position of danger. There were no proven facts to permit the jury to find that the 'engineer, from the facts known to him, should have realized the imminent danger . . . and, with a conscious disregard of the consequences of his act, he operated Ms train and permitted it’ to collide with the truck: Turek v. Pennsylvania Railroad Company, 369 Pa. 341, 85 A. 2d 845. The plaintiff relies [as does the plaintiff in this case] upon Peden v. B. & O. R.R. Co., 324 Pa. 444, 188 A. 586, but in that case the two railroad employes who denied having seen the children, though they were looking at the tracks, testified on behalf of the defendant, and the plaintiff was not bound by their testimony. In the present case the engineer was called by the plaintiff, who is bound thereby; and there was no evidence introduced which contradicted the positive statement that he did not see the truck. ... In the Peden case this Court held that ‘To impose responsibility in such a case it must appear not only that defendant’s employees could or should have seen the boys, but that they did see them, with sufficient opportunity to act in the light of such observation [citing cases]’.”*
*408Plaintiff’s evidence fell far short of the proof required to show wilful or wanton negligence by Gaudio. I would affirm the judgment of nonsuit.
Mr. Justice Benjamin B. Jones and Mr. Justice Eagen join in this dissenting opinion.In this ease the driver of a truck permitted or invited a boy 14 years of age to ride in the truck and so negligently operated it when the boy was alighting as to injure him. In such case binding instructions were affirmed by this Court which held in a clear and strong opinion that the driver had no implied authority to permit boys to ride on the iruck and acted beyond the scope of his implied authority when he did so.
Italics throughout, ours.
We note parenthetically that there was a startling loss or lack of memory in Gaudio’s recollection in the time between the trial and his prior statements.
In the Peden ease defendant’s engineer was under an obvious duty to look and see what was on the tracks ahead of them, but *408also lie and. the fireman testified 'that they did look. In the present case there was no reason for Gaudio to watch plaintiff as he had warned him to stay away and Gaudio did not see him as he was necessarily concentrating on lifting by pulleys, etc. the Buick.