114 N.Y.S. 59 | N.Y. App. Term. | 1909
The action was for personal injuries, and the complaint was dismissed for failure of proof.
It appeared upon the trial that, while the plaintiff was seated upon a bench in one of the city parks, a wagon employed in the removal of rubbish and approaching from a direction opposite the one which the plaintiff was facing passed over his right foot, injuring it. The wagon, as well as the driver in charge, were supplied by one Mrs. McElivy to the defendant’s foreman in charge of the work of maintaining the park in a proper condition. The driver was. in the general employ of Mrs. McElivy, who paid his wages, while she, in turn, was paid for the use of the team and the driver’s services by the defendant. Upon this state of facts it was error to hold that the plaintiff had failed to show a prima facie case for recovery.
It is unnecessary to argue that the driver, seeing the plaintiff seated upon the bench, was negligent in driving his wagon in such close proximity to him as to endanger his person. The fact is evident from the statement of the occurrence. Nor can it be said as a matter of law that the plaintiff was guilty of contributory negligence, in that, while seated upon the bench provided by the defendant for the use of the public, he did not maintain a lookout for approaching wagons. Whether or not he was reasonably justified under the circumstances in assuming that he was in no peril of injury from the defendant’s employés at least was a question of fact, which, upon the evidence as it appears in the record, should have been resolved in his favor. It was broad daylight, and he was where he was at the time of his injury at the invitation of the defendant. He had a right, therefore, to assume that his presence there would be safeguarded by the exercise of ordinary care on the part of the defendant’s employés. The foreman selected the .driver. He had the power to remove and to discharge him from the work. He directed him in the work to be done, and how and in what manner it was to be done. Upon principle, as well as under the authorities, the driver was at the time of the injury the servant of the defendant, and the latter is bound to respond for his negligence. 20 Am. & Eng. Ency. of Law (2d Ed.) 12; Blake v. Ferris, 5 N. Y. 48, 55 Am. Dec. 304; Butler v. Townsend, 126 N. Y. 105, 26 N. E. 1017; Beatty v. Thilemann, 16 Daly, 20, 8 N. Y. Supp. 645.
Judgment reversed and new trial ordered, with costs to appellant to abide the event. All concur.
