Wilson v. Wyckoff, Church & Partridge

133 A.D. 92, 117 N.Y.S. 783, 1909 N.Y. App. Div. LEXIS 2110

Opinions

Scott, J.:

The question of defendant’s negligence was essentially one for the jury and was fairly submitted by the court. All the evidence upon the subject was that which was furnished by defendant’s employees, and may, therefore, be assumed to be as favorable to defendant as the truth would permit. It may be that the evidence did not convict the defendant’s doormen of negligence, but it does not follow that defendant showed proper diligence in devising and putting into effect methods which would more effectually prevent chauffeurs taking out motor cars impropdrly. Indeed, the whole defense is that defendant adopted a method which ought not to be expected to be effective at what are called rush hours. It is difficult to believe that some more effective means might not have been adopted, and the jury were justified in finding that' the failure to adopt, or at least try some other method, constituted a lack of due care on defendant’s part. It is no answer to say that the chauffeur was plaintiff’s servant, for defendant’s contract explicitly was to protect plaintiff against his own servant’s acts. So far as regards the measure of damages I concur with Mr. Justice Houghton. In my opinion the judgment should be affirmed, with costs.

Ingraham and McLaughlin, JJ., concurred; Laughlin and Houghton, JJ., dissented.