183 A.D. 361 | N.Y. App. Div. | 1918
When the plaintiff rested his case, and again at the close of the evidence, the defendant moved to dismiss the complaint upon the ground, among others, that the plaintiff had failed to prove that the vehicle colliding with the cart driven by him was in control of the defendant at the time of the accident, and that the uncontradicted evidence established that such vehicle, together with the horses drawing it and its driver, was then under the control of the Merchants’ Rapid Service Company. The motion was denied and the defendant excepted to such ruling, which it is now contended presents reversible error; that the complaint should have been dismissed as matter of law. The learned trial court submitted to the jury the question of whether Bowman was in the employ and control of the defendant or of the express company at the time of the accident, instructing them, “ if you find that the driver Bowman was sent there with this wagon of Burke, and that this driver became, on that day, an employee and under the control of this Transit Company, if you find that, then you should find for the defendant, because this wagon, for the time being, had ceased to be under the control of the defendant. If you do not find that, if you find that the wagon at all these times was under the control of Burke, that he owned it, that he paid Bowman, that Bowman was his employee, that he simply took orders and did what was told him, he being all the time in the employ and under the control of the defendant, you could then apply all of these rules as to negligence that I have given you, and if you did so find that Burke was the owner, that Bowman was his employee, and that there was carelessness on Bowman’s part that really brought this accident about, * * * and none
In the instant case the record presents a-single transaction; the express company was engaged in its own business, with its own instrumentalities and with its own employees. Requiring for the day an additional truck, it apphed to the defendant, who sent a man to the "company with a team and truck. He did not undertake or agree to dehver any of its goods. He simply rented his team with a driver for the day. He had no control for that day of the horses, truck or driver; they were under the sole control of the company. The driver took no orders from defendant as to what he should do or where he should go during the day. Ah orders and directions were given him by the company, who paid the defendant
The judgment and order of the County Court of Kings county should be reversed, with costs, and the complaint dismissed, with costs.
Present — Jenks, P. J., Thomas, Mills, Rich and Putnam, JJ.
Judgment and order of the County Court of Kings county reversed, with costs, and complaint unanimously dismissed, with costs.