Hornstein v. Southern Boulevard Railway Co.

79 Misc. 34, 138 N.Y.S. 1080

• Court: Appellate Terms of the Supreme Court of New York
• Decided: January 15, 1913
• Status: Published

Opinion

Guy, J.

The defendant appeals from a judgment in favor of the plaintiff entered on the verdict of a jury in an action to recover damages for personal injuries caused by a collision between a street railway car and an auto belonging to defendant, which was being operated on one of the public highways at the time.

The evidence discloses that the auto in question had been rented by defendant for the day, without a chauffeur, to one Christie, and that the chauffeur who was operating the auto at the time of the accident was in no way connected with defendant’s establishment; was not generally or specifically in his employ, but was obtained by Christie from another garage; was employed by him, and was under his control and subject to his orders at the time of the accident.

The plaintiff-respondent contends that, as matter of law, the chauffeur who operated the auto at the time of the accident was presumptively in the employ of the owner of the car; but this presumption has been entirely overcome by the uncontradicted evidence in the case showing that, as matter of fact, the chauffeur was in the employ of Christie.

The judgment must, therefore, be reversed with costs, and the complaint dismissed, with costs.

Seabury and Gerard, JJ., concur.

Judgment reversed, with costs, and complaint dismissed, with costs.