| N.Y. App. Div. | Apr 15, 1929
Judgment and order reversed upon the law and new trial granted, costs to abide the event. Under the facts presented upon this record, we are of opinion that the questions of an emergency employee and of the authority of the chauffeur to direct decedent to examine the brakes were not relevant to the real issue in this case. The charge of the court, however, upon these questions, was confusing and in some respects erroneous, and the result was to obscure and befog the real question at issue. The record discloses that there was no emergency calling for the assistance of decedent, and any directions on the part of the chauffeur to decedent were without authority. The only ground of negligence which should have been submitted to the jury was whether, knowing that the decedent was at the rear of the truck engaged in examining the brakes, the chauffeur started the truck without warning to him. If the jury find that the chauffeur knew that decedent was in the rear of the truck examining the brakes, and, with such knowledge, started the truck without notice to him, plaintiff may recover; otherwise not; assuming, of course, the jury find decedent was not guilty of contributory negligence. Lazansky, P. J., Rich, Young, Seeger and Carswell, JJ., concur.