209 A.D. 193 | N.Y. App. Div. | 1924
This is an action for damages for personal injuries sustained by plaintiff when an automobile owned by defendant and operated by its chauffeur ran into a standing car in which plaintiff was a passenger, causing the injuries complained of, and for which she has recovered damages.
In her complaint the plaintiff alleged that on the 15th day of September, 1922, defendant was the owner of a Ford automobile, and that on that day said machine collided with an automobile in which she was traveling, and that at the time defendant’s automobile was being driven by one Williams, . its employee, while engaged in the conduct of defendant’s business.
By its answer defendant admitted that on the day of the accident it was the owner of a Ford automobile, but it denied that at the time of the accident it was being operated for and on its behalf, or by any person in its employ as its agent or servant.
Defendant is a wholesale dealer in candy, and its place of business is on Genesee street in the city of Utica. At the time of the accident it owned a Ford automobile which was used by its salesman, Arthur H. Williams, to make regular weekly trips to towns and villages in the vicinity of Utica for the purpose of selling its product.
At the time of the accident plaintiff was a passenger in an automobile which had stopped on the side of the highway north of Utica, owing to the fact that at that point the highway was open for one-way traffic only, and plaintiff’s car had been stopped to permit north-bound cars to pass. While the car in which plaintiff was a passenger was standing waiting for the north-bound automobile to pass, her car was run into by defendant’s automobile driven by its salesman Williams. The accident occurred about ten o’clock in the evening, and as the result of the collision plaintiff sustained quite serious injuries.
Defendant’s employee Williams testified as follows: That he
No question is raised as to the extent of plaintiff’s injuries, defendant’s sole claim being that said injuries were not sustained while defendant’s employee Williams was acting within the scope of his employment, or in furtherance of defendant’s business, but that it occurred after he had abandoned the performance of his duty to his master.
Assuming Williams’ testimony to be true, this is not a case where the chauffeur had deviated slightly from his regular route on his way to the garage. We recently held in the case of Bryan v. Bunis (208 App. Div. 389) that when the driver of an employer’s automobile truck on returning to the garage after completing his immediate errand had gone a short distance out of the regular route for the purpose of getting his dinner, it was not such an abandonment of his employment as to relieve his employer from responsibility for an accident resulting from the chauffeur’s negligence while he was thus returning to the garage by way of his home where he had stopped for dinner.
If Williams’ testimony is true, the course adopted by him in this case was not any slight deviation from his regular route, but was an entirely independent trip, undertaken for his own purposes after his regular trip had been completed. His duty required him to return to defendant’s place of business with his automobile after he had completed his weekly trip. If the trip was completed,
In the case of Reilly v. Connable (214 N. Y. 586) the Court of Appeals held that when a chauffeur took the car of his employer for the purpose of getting some meat for his family, it was not in the master’s service, even if he did it with the consent of the owner of the car. It would still be an errand for the benefit of the chauffeur and not for the benefit of the master.
-It is urged on behalf of plaintiff that even though the driver’s trip from Utica to North Wood Heights was his personal errand, and outside the scope of his employment, on his return trip from North Wood Heights to Utica he had abandoned his personal excursion and had resumed service for his employer. That is a fanciful theory which is not justified by the facts, and the case of Bloodgood v. Whitney (235 N. Y. 110), relied on by plaintiff, is distinguishable from the case at bar on the facts.
In that case the accident occurred while the chauffeur was returning to his employer’s garage from New York, where he had been specifically authorized to take the car to do an errand for his employer, and it did not occur during the abandonment of his duty to his employer.
.In 'he instant case when defendant’s driver returned to Utica from his regular trip, and went down the street on which defendant’s place of business was located, and got to the point where he should have driven into defendant’s garage, and he failed to do so, as testified to by him, from that moment he abandoned his employer’s service, and his trip twenty-six miles north of Utica, and his return trip, occurring after he had abandoned his duty to his employer (the accident having occurred during the continuance of that abandonment) defendant would not be hable.
In the case of Bloodgood v. Whitney (supra) the Court of Appeals' said: “It is the point of commencement of the abandonment which almost necessarily determines its completion.”
Williams’ abandonment of defendant’s employment occurred, if
In the latter case a gentleman and his wife were guests at the Clifton Springs Sanitarium. They had been out for a drive one afternoon and on their return to the sanitarium defendant, who owned the automobile, directed his driver to return it to the garage where it was usually kept. The driver returned to a point in front of the garage and there invited an acquaintance to drive with him, the expressed purpose being to drive out of the village a short distance to see if he could discover some little trouble with the mechanism of the car. That at least was the excuse given by the chauffeur for failing to obey his employer’s instructions to return the automobile to the garage. They drove out of the village about a mile and on their return trip to the garage they ran into plaintiff’s intestate, causing the injuries which resulted in her death. An action was brought against the owner of the automobile, and also against the chauffeur, who did not answer. On the trial, at the conclusion of the evidence, the complaint was dismissed as against the defendant Upson, because the accident occurred when the chauffeur was on a private errand, without the knowledge or authority of his employer. On appeal the judgment was affirmed by this court.
Defendant’s ownership of this automobile would create a presumption that at the time of the accident it was being driven for the use and benefit of the owner, but that presumption can be overcome by substantial evidence to the contrary. (Powers v. Wilson, 203 App. Div. 232.)
Here the evidence is uncontradicted that whatever the driver
If the accident occurred while the driver was engaged in his own enterprise and before he had returned to a point where he had abandoned the service of his employer, the defendant could not be held hable. We think, therefore, that the plaintiff cannot recover on the theory that, even though Williams had abandoned his master’s service in making the trip in question, he had by returning again entered on his master’s business. We think, however, it was a question of fact for the jury to determine whether the evidence of Williams was to be believed, as he was an interested witness and the jury had the right to take that into consideration and all the other facts and circumstances in regard to the details of the trip, and as the record now stands the verdict is against the weight of the evidence.
The judgment and order should be reversed on the law and the facts, and a new trial granted, with costs to the appellant to abide the event.
All concur.
Judgment and order reversed on the law and facts and new trial granted, with costs to appellant to abide event.