58 N.Y.S. 863 | N.Y. App. Div. | 1899
The action is to recover damages for personal injuries. The plaintiff, a boy seven years old, was standing at the edge of the sidewalk, by the side of a coal box which stood there, looking at other boys playing in the street. There was a push cart in the carriage
The first objection to the recovery raised by the appellant is-clearly untenable. The duty of the driver’s employment required him to drive the truck back to the brewery. Though he deviated from his direct road, still the conduct and management of the team on the course he took Avere none the less services in the course of his employment. At most his acts constituted misconduct in his employment, not an abandonment of it. The case is not at all similar to one where the servant takes his master’s team for a purpose unauthorized and solely his own. In such a case the driver would not be acting in the service of his master. But here the driver did not take the truck as a vehicle or means of transporting himself the íavo blocks he went out of his way, but intending to go-to see his friend and at the same time intending to return the truck to the brewery, as Avas his duty, he drove the truck over the- route-adopted for the very purpose of continuing his 'service, in taking charge of the team and truck, and not for his own purposes. The case falls within that of Quinn v. Power (87 N. Y. 535), where it was held that the owner of a ferryboat was liable for the negligence
We are, also, of opinion that the defendant was responsible for the conduct of the stranger who stopped the team and drove the truck to the saloon. The question of what is the proximate.and efficient cause of an accident is often the occasion of somewhat metaphysical distinctions and the subject of diverse opinions. Of late years the tendency of the authorities has been to refer the accident to the original, fault which set in motion the circumstances culminating in the injury. (S. & R. Neg. § 30.) In Lowery v. Manhattan Railway Co. (99 N. Y. 158) coals carelessly dropped from an engine of the railroad fell upon a horse in the street, rendering him unmanageable. The driver, to stop the horse, drove him against the curb, injuring the plaintiff. It was held that an error of judgment on the part of the driver as to the proper course to adopt in an emergency that had occurred would not relieve the railway company from liability. The question in. this case is somewhat broader than that in the one cited. The court was asked to -charge that the defendant was not liable for the negligence of the stranger who seized the team. This was refused, and the defendant excepted. We have, therefore, to determine whether the rule is the same in the case of the intervening negligence of a third party as in the case of a mere error of judgment. We think that depends on the nature of the -occurrence. Here the horses having started, there arose a great risk that serious accidents might occur. This certainly justified any bystander in stopping the horses. How if the whole emergency or peril had then cfeased, from that time the defendant would not have been responsible for the,acts of the stranger. . But it had not ceased. The team" and truck could not be left in the middle of the carriageway obstructing public travel, besides -subjecting othep trav
The judgment and order appealed from should be affirmed, with costs.
Judgment and order unanimously affirmed, with costs.