228 A.D. 664 | N.Y. App. Div. | 1929
Judgment as to appellant McCurdy reversed upon the law, with costs, and complaint, as to him, dismissed, with costs. Defendant Rhodes, with whom appellant McCurdy left an automobile to be repaired, was an independent contractor. (Thorn v. Clark, 188 App. Div. 411.) The injuries sustained by respondent occurred while such contractor was giving appellant’s automobile a road test. The owner of the car is not liable under the common law. Section 59 of the Vehicle and Traffic Law was passed to “ make the owner liable for the negligence of a person to whom he loaned the car in connection with its operation upon the highway.” (Psota v. Long Island R. R. Co., 246 N. Y. 388, 393.) Defendant Rhodes not being the agent of the owner, the owner cannot be held liable under the statute. Kapper, Seeger and Scudder, JJ., concur; Lazansky, P. J., with whom Rich, J., concurs, dissents, with the following memorandum: I dissent from the majority view that the complaint be dismissed, being of opinion that the verdict should be set aside and a new trial granted upon the ground that the verdict is against the weight of the evidence on the question of the express or implied consent of defendant McCurdy that defendant Rhodes might operate the former’s car, and in particular with reference to the proof that such operation was necessary in connection with the repairs made by defendant Rhodes in behalf of defendant McCurdy. I disagree with the view that because defendant Rhodes was an independent contractor, defendant McCurdy, the owner, cannot be hable for the act of defendant Rhodes in the operation of the car if such operation were expressly or impliedly authorized by defendant McCurdy for the purpose of ascertaining if repairs were effectually made. Section 282-e of the Highway Law, as amended, and now section 59 of the Vehicle and Traffic Law, was intended to thrust liability in certain eases where it had not been east under the common law. An examination of the enactments in this connection, beginning with section 282-e of the Highway Law (added by Laws of 1924, chap. 534, as amd. by Laws of 1925, chap. 167; Laws of