219 A.D. 444 | N.Y. App. Div. | 1927
Plaintiff in this action recovered a judgment of over $32,000 for the death of her husband who was injured in December, 1924, while driving a horse-drawn truck along the north-bound car tracks on Ninth avenue in the city of New York about twenty-five feet north of Seventeenth street. The left front wheel of his truck was hit by the right front wheel of the city-owned truck going north which cut around intestate’s wagon, pushing it up against the elevated railroad pillar and throwing the driver off the seat to the ground under the wheels of his own wagon which ran over him.
Doubtless at common law the city would not be liable since Canevari, the driver, was not engaged in any business of the city at the time of the accident, but had proceeded “ on my own hook,” as he phrased it, to take a city truck to the railroad yards for his own purposes. He had applied to the foreman in charge of his gang for a half day off. When this was refused he said he would take the car “ on my own hook,” and the foreman replied, “ Go ahead.” He returned after the accident to work with his truck at Mulberry and Hester streets. The foreman testified that his duties were to keep the men and the truck at work south of Houston street, but on the afternoon in question he gave Canevari a “ little privilege ” on his own responsibility to do some shopping for the Christmas holidays. He said it was not customary to allow this to be done and that he had no authority to let the truck leave the work.
Counsel for the city asked to have the complaint dismissed on this proof, upon the grounds that plaintiff had not shown any liability on the city’s part, because the city truck was not operated by permission of the owner; was not engaged in the city’s business; and, in effect, was deviated from the use to which it was put.
It is claimed that the city may be held liable, however, under chapter 534 of the Laws of 1924, which added section 282-e to the Highway Law, which provides:
“ Negligence of operator other than owner attributable to owner. Every owner of a motor vehicle operated upon a public highway shall be hable and responsible for death or injuries to person or property resulting from negligence in the operation of such motor vehicle, in the business of such owner or otherwise, by any person legally using or operating the same with the permission, express or implied, of such owner.”
The learned trial court charged that this section was applicable to this case. The court also charged that the jury was to discover
The city also claims that the statute is unconstitutional, in that it deprives the city of its property without due process of law, for it takes away two defenses, which prior to its enactment would have defeated the plaintiff’s claim: (1) That the truck was being used without the permission of the master (the city); (2) That it was not being used in the master’s business.
We do not believe there is any question but that the Legislature has power to impose upon owners of automobiles liability for damages which they cause, because of the danger arising from the use of this means of locomotion on the public highways even when not used in the business of such owners, when they permit either
We think the judgment should, therefore, be reversed, with costs, and the complaint dismissed, with costs.
Dowling, P. J., Finch, Martin and O’Malley, JJ., concur.
Judgment reversed, with costs, and complaint dismissed, with costs.