Thompson v. Anderson Electric Car Co.

181 A.D. 894

Opinion

Although defendant stood in the position of owner of this motor car, which was run by one who had been in defendant’s employ during working hours, such inference of responsible control has been met and overcome by proof that on this evening trip the car had been lent to Mr. Kretchmer for his private purpose to bring his mother home from a hospital. The driver was, therefore, in Mr. Kretchmer’s personal service, and was not engaged in defendant’s business. This evidence was uncontradicted and disproved any presumption that defendant had custody, control or authority over the driver, at the time of the injury. Hence the judgment must fall. (Potts v. Pardee, 220 N. Y. 431; Farthing v. Strouse, 172 App. Div. 523.) The judgment and order are, therefore, reversed, and the complaint is unanimously dismissed, with costs. Present — Jenks, P. J., Thomas, Mills, Putnam and Blackmar, JJ.