Scheib v. New York City Railway Co.

Appellate Division of the Supreme Court of New York

Scheib v. New York City Railway Co.

115 A.D. 578, 100 N.Y.S. 986, 1906 N.Y. App. Div. LEXIS 3011

CourtAppellate Division of the Supreme Court of the State of New York

DecidedNovember 16, 1906

StatusPublished

Cited by2 cases

This text of 115 A.D. 578 (Scheib v. New York City Railway Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Scheib v. New York City Railway Co., 115 A.D. 578, 100 N.Y.S. 986, 1906 N.Y. App. Div. LEXIS 3011 (N.Y. Ct. App. 1906).

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Opinion

Woodward, J.:

The plaintiff in this action was injured in a collision between an electric car of the defendant and a wagon in which the plaintiff was riding, but which was driven by another person. The principal question presented by this appeal- is whether the learned trial court erred in charging the jury, as requested in behalf of the plaintiff, “ that if the plaintiff conducted himself with due care, and the accident was caused by the negligence - of the defendant’s motorman, the defendant would be liable even though the driver of the wagon was also concurrently negligent.” It is contended on behalf of the appellant that inasmuch as the testimony showed that the plaintiff and the driver of the wagon were engaged in a common employment, this instruction was erroneous as in conflict with the law as laid down in the case of Donnelly v. Brooklyn City R. R. Co. (109 N. Y. 16).

We are of the opinion, however, that there is a distinction between the Donnelly case and the case at bar. In the Donnelly case it distinctly appeared from the evidence that both the plaintiff •and the driver were engaged in the management and directing the control of the wagon. Here there is no proof whatever that the plaintiff did anything or attempted to do anything to influence the conduct of the driver.

This distinction has heretofore been pointed out by this court in Bailey v. Jourdan (18 App. Div. 387); and in McCormack v. Nassau Electric R. R. Co. (Id. 333) this court also laid down the rule which it supposed to be applicable to accidents of the same character as that involved in the present case, a rule which still seems to us readily reconcilable with the opinion of Geay, J., in the Donnelly case when the facts which were under consideration in that case are clearly understood.

There is no other question which calls fo.r discussion, and the judgment and order should be affirmed.

Present—Hirschberg, P. J., Woodward, Rich and Miller, JJ.

Judgment and order unanimously affirmed, with costs.

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Woodward, J.:

The plaintiff in this action was injured in a collision between an electric car of the defendant and a wagon in which the plaintiff was riding, but which was driven by another person. The principal question presented by this appeal- is whether the learned trial court erred in charging the jury, as requested in behalf of the plaintiff, “ that if the plaintiff conducted himself with due care, and the accident was caused by the negligence - of the defendant’s motorman, the defendant would be liable even though the driver of the wagon was also concurrently negligent.” It is contended on behalf of the appellant that inasmuch as the testimony showed that the plaintiff and the driver of the wagon were engaged in a common employment, this instruction was erroneous as in conflict with the law as laid down in the case of Donnelly v. Brooklyn City R. R. Co. (109 N. Y. 16).

We are of the opinion, however, that there is a distinction between the Donnelly case and the case at bar. In the Donnelly case it distinctly appeared from the evidence that both the plaintiff •and the driver were engaged in the management and directing the control of the wagon. Here there is no proof whatever that the plaintiff did anything or attempted to do anything to influence the conduct of the driver.

This distinction has heretofore been pointed out by this court in Bailey v. Jourdan (18 App. Div. 387); and in McCormack v. Nassau Electric R. R. Co. (Id. 333) this court also laid down the rule which it supposed to be applicable to accidents of the same character as that involved in the present case, a rule which still seems to us readily reconcilable with the opinion of Geay, J., in the Donnelly case when the facts which were under consideration in that case are clearly understood.

There is no other question which calls fo.r discussion, and the judgment and order should be affirmed.

Present—Hirschberg, P. J., Woodward, Rich and Miller, JJ.

Judgment and order unanimously affirmed, with costs.

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115 A.D. 578, 100 N.Y.S. 986, 1906 N.Y. App. Div. LEXIS 3011, Counsel Stack Legal Research, https://law.counselstack.com/opinion/scheib-v-new-york-city-railway-co-nyappdiv-1906.

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