De Smet v. Niles

175 A.D. 822 | N.Y. App. Div. | 1916

Page, J.:

The action was to recover damages for personal injuries sustained by reason of the alleged negligent operation of an automobile belonging to the defendant.

There was sufficient evidence to sustain the verdict of the jury on both propositions of the negligence of the driver of the automobile and the freedom from contributory negligence of the defendant. The serious question in this case, however, is as to liability. The defendant, a young man of about twenty-one or twenty-two years of age living with his father and mother, owned this car. William W. Niles, Jr., testified that his brother, the defendant, had forbidden him to take the car out alone, but that any time his mother wanted him to take her out, he could take her out in the car. On this occasion the mother had asked William to get the car for the purpose of taking her and a friend of the mother from their residence to the friend’s home in One Hundred and Sixteenth street. It appeared that the defendant was not consulted and gave no special permission for the use of the car on this trip. It is very evident that the car was not being used in the business of the defendant but solely for the purposes and pleasures of the mother, and the mere authority given to William to take the car out when his mother wished him to did not render the defendant liable. (See Reilly v. Connable, 214 N. Y. 586; Cunningham v. Castle, 127 App. Div. 580; Tanzer v. Read, 160 id. 584; Freibaum v. Brady, 143 id. 220; Maher v. Benedict, 123 id. 579; Heissenbuttel v. Meagher, 162 id. 752; Clark v. Buckmobile Co., 107 id. 120.)

The judgment and order should be reversed, with costs to the appellant, and the complaint dismissed, with costs.

Clarke, P. J., Laughlin, Scott and Dowling, JJ., concurred.

Judgment and order reversed, with costs, and complaint dismissed, with costs.