112 Misc. 212 | N.Y. Sup. Ct. | 1920
The record shows the plaintiff was the owner of an automobile, which he permitted one Dritsan to use in Dritsan’s own business. While Dritsan was running this automobile on business of his own, he had a collision with a street car of the defendant, in which the automobile was damaged. Fischer, the owner of the machine, sued the defendant for the damages sustained by the automobile. The trial court foun'd as matter of fact that both the defendant and Dritsan who operated the machine were guilty of negligence. The question presented to this court for review is whether the contributory negligence of Dritsan prevents a recovery against the International Railway Company for its negligence. The contention of the railway company is that the negligence of Dritsan is imputable to Fischer, the plaintiff.
On the other hand plaintiff’s counsel cites the following eases as holding the contrary doctrine, viz.: New York, L. E. & W. R. R. Co. v. New Jersey Electric Railway Co., 60 N. J. Law, 338, and cases cited in the opinion in that case. Also Currie v. Consolidated R. Co., 81 Conn. 383; Gibson v. Bessemer & L. E. R. R. Co., 226 Penn. St. 198; Van Zile Bailm. & Carr. § 128.
Plaintiff’s counsel also calls the court’s attention to the line of cases in this state holding that where the owner of a motor car permits its use by another exclusively for the borrower’s benefit or pleasure, the owner is not responsible for the negligence of the borrower in its operation. Van Baricom v. Dodgson, 220 N. Y. 111; Clawson v. Pierce Arrow Motor Car Co., 182 App. Div. 172, and many other decisions.
We think the case now up for review must be decided on broad general principles. Dritsan was not in any sense the agent for the plaintiff. He was not engaged in the plaintiff’s business at the time of the accident. As the borrower and bailee of the plaintiff’s property, he owed the duty to the plaintiff to handle the machine with care, and if the machine was damaged by his negligence the bailee became responsible
The doctrine is so elemental that it is difficult to see how a different conclusion in this case could have been reached.
As was said in New York, etc., R. R. Co. v. New Jersey Electric Railway Co., 60 N. J. Law, 338: “ In a contract of bailment of things for hire, the bailor is not responsible to a tMrd party for injuries occurring to such third party by reason of the negligent use of the thing hired by the bailee, nor for the negligence of the servants of the bailee in respect thereto. The bailee does not stand in the place of the bailor nor represent him in such relation as to render the bailor liable for such injuries, nor are the servants of the bailee the servants of the bailor or in any sense acting for him, and the contract of bailment is in so far entirely an independent one, and the liabilities of the bailor and bailee to tMrd parties are essentially independent of each other.”
In Bockland Lake Trap Rock Co. v. Lehigh Valley R. R. Co., 115 App. Div. 628, a scow lashed to the side of a tug which was towing it was injured in a collision with another tug owned by the defendant, and it was held that the owner of the injured tug was entitled to recover notwithstanding the concurrent negligence of the towing tug. In the course of the opinion in that
It certainly would seem logical that where the owner of property loaned is not liable to third parties for the negligence of the bailee that the converse of the proposition should obtain and that such negligence, when contributory to the negligence of third parties, should not absolve the third parties from liability to the owner of property damaged.
The appellant cites the case of Arctic Fire Insurance Co. v. Austin, 69 N. Y. 470, 482, as sustaining the contention of the defendant. There a cargo of grain was shipped by boat and owing to negligence in the operation of another boat the cargo was damaged. There was evidence that the accident was occasioned in part by the negligence of the master of the boat carrying the grain, and the court held such contributory negligence a defense. That decision seems to have been based on the ground that owing to the peculiar relation existing between the shipper and carrier (where the carrier practically insured safe delivery to the consignee) the carrier became the agent of the shipper. In the course of the opinion, Judge Allen said: “ The possession of the carrier is that of the merchant shipper; he is the bailee, and quasi the agent of the shipper. Whatever he does in the course of the service and bailment he does as the agent and representative of the owner, and if so, all the consequences of the negligence of the carrier will be visited
Whatever may" be claimed for the case of Arctic Fire Ins. Co. v. Austin, we think its application should be confined to the particular facts there presented, and not extended to a case like that now under consideration where no possible agency can be claimed to exist.
We are of the opinion that the judgment appealed from should be affirmed, with costs.
Judgment affirmed, with costs.