200 A.D. 33 | N.Y. App. Div. | 1922
Lead Opinion
The defendants’ truck was being driven by a chauffeur on Cherry street in the eastern part of New York city at the time of the accident. The truckman had taken a load of goods from the defendants’ place of business to Staten Island. On his return his natural and
In view of the decision of the Court of Appeals in Riley v. Standard Oil Co. (231 N. Y. 301), the latest decision of the Court of Appeals, we feel bound to hold that the question of the defendants’ control of this car at the time of the accident was a question for the jury. In that case it was so held, even though the chauffeur’s excursion for his private purpose was not yet ended. It is true in the case cited that the chauffeur had a load which he was required to deliver at the owner’s place of business. In the case at bar he had the owner’s automobile that he was required to deliver at the garage. The fact that in the Riley case he also had a load which he was required to deliver bears, as I view it, upon the question of fact which the jury is to determine, rather than upon a question of law, as to whether the truck was, at the time, in the control of the master. In this case, however, where the facts are such that the jury may well have found that the chauffeur had started for the garage at the time of the accident, where he was in duty bound to take the automobile, the court was not authorized to hold as matter of law that the chauffeur was not engaged in the master’s business at the time of the happening of the accident.
The judgment and order should be affirmed, with costs.
Laughlin and Merrell, JJ., concur; Clarke, P. J., and Greenbaum, J., dissent.
Dissenting Opinion
The plaintiff has recovered a verdict for personal injuries received, as is alleged, as the result of the negligence of the defendants’ chauffeur. The chauffeur, Connelly, had been at work for the defendants as a chauffeur in charge of one of their trucks for about a year prior to the accident. It was a large electric truck with a left-hand drive used for the transportation of merchandise. It was covered, the distance from the street surface to the roof being eight and one-half feet. The height from the surface of the roadway to the underfloor boards three feet, six inches. The sides are of solid wood one foot, ten inches in height, above which are four slats
There is no dispute in the evidence that these two block parties in Hamilton street and in Cherry street, with the boys of the said streets dressed up in the fantastic garb, were going on at that time. There is no dispute that there was a crowd of boys in and on his truck. There is no dispute that Connelly was giving these boys a ride around the neighborhood. The plaintiff himself testified that the truck was full of boys, “ like sardines ” and that they were dressed in costume. His cousin, who was seventeen years of age, testified that the car “ was full up to the top step; there was somebody sitting with the chauffeur even. * * * It was all full. * * * They were * * * sitting on top of the. roof.” The policeman, Hartnett, testified that he had seen the truck on that day two or three times lumbering slowly along the street, down Catherine street, through Cherry and those adjoining streets,
His cousin Lamarco testified that the truck came from Hamilton and swung down to Catherine street and it stood on the corner of Catherine and Cherry streets for a while. “ I was on the sidewalk, so when the car stopped on the corner there, we just climbed on the truck, I climbed in the back and he [the plaintiff] climbed in the middle of the truck.” He had been on a few seconds when the car started. Before the driver started “ he told us to get off, so he was on Cherry street when he told us, so I was getting off, so my cousin was getting off, he was on top of the racks. As soon as I [heard] some screams, I told the chauffeur, I holler out, ‘ stop, stop.’ ”
These were the only witnesses as to the manner in which the accident occurred. The other witnesses for the plaintiff did not see the boy climbing up or getting on the truck, but only saw him after his leg was crushed.
The defendants' witnesses testify that the car did not stop before the accident; that they saw the boy running for it while it was in motion. So that the different theories presented were, on the plaintiff’s side that the accident occurred because the chauffeur ordered the boys off after they were on and while it was in motion; and the defendants’ that the boy was injured trying to get on by climbing up the side while it was in motion. So there is presented a question of fact upon conflicting evidence as to the
It seems to me that the conclusion is inevitable, assuming that he was negligent in ordering the boys off while the car was in motion, that he was not then engaged in his master’s business, and hence the defendants are not responsible therefor. It is useless to cite cases, because the rule now seems to be laid down in Riley v. Standard Oil Co. (231 N. Y. 301) that “ no formula can be stated that will enable us to solve the problem whether at a particular moment a particular servant is engaged in his master’s business. We recognize that the precise facts before the court will vary the result. We realize that differences of degree may produce unlike effects. But whatever the facts, the answer depends upon a consideration of what the servant was doing, and why, when, where, and how he was doing it.”
Thus it appears now that the question of liability depends upon the facts, and, as this court is charged by law with responsibility of reviewing the facts, I am of the opinion that upon no reasonable interpretation of the facts in the case at bar can the chauffeur at the time of this accident be held to have been about his master’s business. It follows, therefore, that the judgment and order appealed from should be reversed and the complaint dismissed.
Greenbaum, J., concurs.
Judgment and order affirmed, with costs.