20 Wend. 210 | N.Y. Sup. Ct. | 1838
The main ground urged in support of the application for a new trial is, that the proof failed to establish that the servant was acting in the business of the master, or within the scope of his authority. The answer to which is that the point was not made upon the trial, neither in the motion for a non-suit or after the testimony had closed. The cause seems to have been tried and defended upon the assumption of the existence of the relation of master and servant between the defendant and the person driving the carriage. Had the objection been taken, more full proof might have been called out, so as to have placed the question beyond doubt. If the point had been put forth iri due season, as the evidence stands, the judge would have been bound to have submitted it to the jury, and their verdict would have been well warranted. It would therefore be unreasonable to disturb the verdict upon the ground now urged, as the counsel did not choose to avail himself of it when it could have been removed by his adversary by the production of further proof, or met by going to the jury upon that already given.
The damages were specially laid in the declaration, and were clearly proved to have been the direct consequence of the principal act complained of; they therefore came within the well settled rule respecting special damage.
New trial denied.