93 N.Y.S. 161 | N.Y. App. Div. | 1905
Shortly before 6 o’clock in the evening on the l'6th day of November, 1901, the plaintiff, while crossing Eighth avenue along the southerly cross-walk of Forty-Second street, was struck and injured by the defendant’s automobile, which was going northerly on Eighth avenue; inflicting injuries, to recover for which this action is brought. The automobile was in charge of the defendant’s chauffeur, who was employed by the week. The plaintiff testified, in substance, that as he was leaving the easterly sidewalk of Eighth avenue he looked up and down to see if the way was clear; that he saw a wagon loaded with iron approaching from the south a little over 50 feet distant, and near the curb, and saw a car approaching on the north-bound track of Eighth avenue about abreast of the wagon, and an automobile trailing behind the car, and apparently in the car track; that he walked along, crossing in front .of the wagon, and when he came within about 3 feet of the first track the car was passing, and he stopped, waiting for it to
We are of opinion that this verdict should be reversed as against the weight of evidence. There was sufficient evidence to take the case to the jury on the question of the plaintiff’s contributory negligence and the negligence of the chauffeur, but it does not preponderate in the plaintiff’s favor upon either proposition. The facts that the defendant. was the owner of the automobile, and the chauffeur was in his employ to operate it, were sufficient to make out a prima facie case that the chauffeur was acting within the scope of his employment at the time; but this was far from conclusive, and if the testimony of the chauffeur that he disob eyecj the defendant’s instructions, and took the automobile out for his own pleasure, is true, the defendant is not responsible for the accident. The testimony of the chauffeur on this point is not improbable. Of course, the defendant may have permitted the chauffeur to take the automobile to attend the races; but it is evident that this was attended with more or less wear and tear to the machine, and expense of operating, aside from risks of accident. It is also possible that the chauffeur would commit perjury for the sake of relieving his employer from liability or retaining his position, but it is not likely that this would be volunteered, and it is not probable that an employer would suggest this story to his servant. We are of opinion, therefore, that the findings of the jury that the plaintiff was free from contributory negligence, and that the chauffeur was negligent, and was acting within the scope of his employment for the defendant at the time, are against the weight of the evidence.
It follows that the judgment and order should be reversed, and a new trial granted, with costs to appellant to abide the event. All concur.