Cohen v. Western Electric Co., 50 Misc. 660

Cohen v. Western Electric Co.

50 Misc. 660 | N.Y. App. Term. | 1906

Clinch, J.

This action is predicated upon the negligence of the driver Doyle who was in charge of the truck at the time of the accident. Plaintiffs seek to hold the defendant liable for Doyle’s negligence upon the ground that defendant was responsible for his acts. Fish & Wilmarth was a firm of contractors engaged exclusively in the trucking business for the Western Electric Company. The firm was paid by the month and according to the number of trucks employed, and at the monthly rate of $150 for double trucks, $100 for single and $90 for wagons. If extra trucks were needed to handle the business they were furnished by Fish & Wilmarth at $7 a day. It was not disputed at the trial that the contractors owned all the trucks, wagons, horses, harness and other equipment necessary to carry on their contract. At the close of the trial plaintiffs *661conceded that the defendant did not own the outfit, but claimed that it operated it. The firm of Fish & Wilmarth paid the wages of Doyle gnd the other- employees, and the firm and Redfield, its foreman, were the only persons who ever exercised the power to employ or discharge the drivers and other employees. There is no evidence tending to show that the defendant or any of its officers or servants had, or ever attempted to exercise, any authority over Doyle or any other driver other than the evidence of the direction of a shipping clerk as to where goods were to be taken that were to be delivered by the defendant to its customers. There is no evidence sufficient to charge defendant with responsibility for any negligence on the part of Doyle, assuming that any negligence was proved. Skids on the sides of the truck contained the words “ Western Electric Co.,” but no address. At the most this fact called for an explanation by defendant and the explanation furnished by it disposed of any prima facie case which the presence of the skids created. The statement that the case contains all the testimony given upon the trial is sufficient. Dibble v. Dimick, 143 N. Y. 549.

Judgment must be reversed and a new trial ordered, with costs' to appellant to abide the event.

Gildersleeve and Davis, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.