154 N.Y.S. 109 | N.Y. App. Term. | 1915
This action was brought to recover for damages to plaintiff’s taxicab through a collision with defendant’s automobile operated by defendant’s chauffeur, Doro. It was substantially conceded that Doro’s operation of the car at the time was negligent, and that plaintiff’s chauffeur was free from negligence, the only question really litigated at the trial being the responsibility of the defendant for the act of
Further evidence was introduced by the plaintiff to the effect that defendant had made offers or entered into some kind of negotiations for the payment.to the plaintiff of the whole or part of the damage to his taxicab; this, no doubt, for the purpose of indicating some admission of liability on his part.
On this record, it is plain, notwithstanding the claim of the defendant to the contrary, that an issue existed requiring submission to the jury. In Ferris v. Sterling, 214 N. Y. 249, the Court of Appeals, by Cardozo, J. (p. 253), quoting Norris v. Kohler, 46 N. Y. 42, 44, says: “ ‘ The property being proved to belong to the defendant * * * a presumption arises that it was in use for his benefit, and on his 'own account.’ This presumption was not destroyed, as a matter of law, by testimony for the defendant. Even though his explanation of the use of the car would absolve him if credited, the question whether it should be credited was one of fact for the jury. (Gulliver v. Blauvelt, 14 App. Div. 523; Cunningham v. Castle, 127 App. Div. 580.)”
The chief alleged error upon which appellant rests his claim for a reversal of the judgment lies in the refusal of the learned judge below to charge the following request: “In the event that the jury find that the chauffeur was at the time of the accident operating the cár with the consent or by the permission of the defendant, its verdict must, nevertheless, be for the defendant, unless it appears at the time of the accident that the chauffeur was acting within the scope of his authority and engaged upon the business of the defendant.”
Apart from some unimportant criticism of the ver
Moreover, in the course of his charge, the learned judge spoke of the claim of the defendant “ that the automobile was being used by Doro outside of the scope of his employment and in an enterprise of his own ” as a defense. He then added: ‘ ‘ But the defense in and of itself is one which is not open to direct contradiction. In other words, it depends usually on a mental attitude, and therefore no person who is injured * * * is able to determine, and therefore in that to contradict the claim or the denial of actual
Under the circumstances, therefore, the judgment must be reversed and new trial ordered, with costs to appellant to abide the event.
Page, J., concurs; Guy, J., concurring in result.
Judgment reversed and new trial ordered, with costs to appellant to abide event.