159 N.Y.S. 722 | N.Y. App. Term. | 1916
Plaintiff claims that while she was sitting on the sidewalk in front of No. 33 Cannon street about ten o’clock of a summer evening, defendant’s automobile, in charge of his chauffeur, Soble, was so negligently operated that the rear end of it came up on the sidewalk and injured her. Defendant is a doctor living at 330 East Fourth street. Soble had finished his work for the day jand was to take the automobile to the garage in Williainsburg over the so-called Delancey street or Williamsburg bridge. He went to his own home at No. 29 Cannon street to get his supper. No. 29 Cannon street is about halfway between Delancey street and Broome street, which is south of Delancey.
Plaintiff’s contention, in substance, is that after
Defendant’s claim is that plaintiff was sitting in the gutter on a chair.
The question whether Soble had his master’s permission to stop at his own home for dinner was litigated at length. Although mere permission would not be determinative (see Cunningham v. Castle, 127 App. Div. 580, 586, 587) nevertheless if he had such permission it is evident that his stop for the' meal while engaged in his master’s service in returning the automobile to the garage did not remove him even temporarily from that service.
In this respect the learned judge below charged the jury incorrectly when he said: ‘ ‘ If the owner told him 1 You can take my automobile and go to your home and get your dinner ’ and he proceeded to do so and he hurt somebody while doing so, he would not be engaged at that time in the business of the defendant.” This error in the charge, however, except in so far as it may have conveyed to the jury a generally inaccurate impression as to the law of the case, was probably not material because whether at the actual time when Soble was taking his dinner he was engaged in his master’s service or not, it is perfectly clear that after he had-finished the meal if he started for the garage he had completely resumed his master’s duties. Geraty v. National Ice Co., 16 App. Div. 174; Jones v. Weigand, 134 id. 644.
Bearing in mind the fact that the distance between
Later he said: “We do know that had he gone to the garage directly after being discharged for the night at the defendant’s place of business, it would have been the nearest way to go over the Delancey street bridge, because the garage was near the Brooklyn end of that bridge. Having passed south of Delancey street to go to his home, if he desired to go to that garage by the nearest route presenting itself, he would naturally turn his car north again, to go to Delancey street and cross the bridge.”
And then added: “ But if instead of turning toward
Plaintiff’s counsel excepted to this portion of the charge, and particularly to the right accorded to the jury to draw ‘1 a certain inference from the way the automobile was driven off or the direction in which the automobile was driven off.” This exception presents error for which the judgment must be reversed.
There was no direct evidence to contradict the chauffeur’s statement, when testifying on behalf of defendant that he was proceeding to the garage, and that his wife and mother-in-law accompanied him only because they were going to Williamsburg and he “ wrould drop them off after he took them across the bridge,” that that was what he did. There was, therefore, no evidence at all that after he had taken his meal he was engaged in other than his master’s service returning the automobile to the garage. As I have pointed out -above, the mere fact that he went by way of Broome street rather than Delancey street for a short distance would amount merely to a deviation from the direct route.
I cannot find in this f¿ct even the proverbial ‘ ‘ scintilla ” of evidence that he was entering upon a joyride or any purpose of his own, but even such a scintilla furnishes no adequate foundation upon which to base a finding. Matter of Case, 214 N. Y. 199, 203, 204 and cases there cited.
The record as it comes to us presented no issue as
In connection with this subject, appellant claims that the court below committed further error by charging, in substance, that if the plaintiff was not seated on the sidewalk that was the end of the case. Appellant would have us infer from this that the court below had charged that appellant’s sitting in the gutter was contributory negligence as matter of law. It is quite plain to me, however, from a reading of the context, that what the court did charge was that if plaintiff was not sitting on the sidewalk then she could not recover, because then her whole theory of the case failed. This had no reference to the question of contributory negligence.
Guy and Philbin, JJ., concur.
Judgment reversed and new trial granted, with costs to appellant to abide event.