Opinion
November, 1906.
James A. Deering (J.C. Toole, of counsel), for appellants Doyle.
George R. Westerfield, for respondent.
The action is for injury to plaintiff's property. The plaintiff rented a truck and team to the defendants Doyle, who placed the same in charge of one Dunn, a driver of thirty years' experience. At the corner of Waverly place and Sixth avenue, Dunn turned his horses east to cross the avenue into Waverly place. As his team was about to go on the north bound track, he looked and saw one of the cars of defendant railroad company, sixty-five feet away, coming up Sixth avenue. The horses were going at a moderate pace and were well under control. It was broad daylight and the motorman must have seen the team and truck. The car came on at a high rate of speed and struck the truck, causing the injuries complained of. The jury found for plaintiff against all the defendants. The latter appealed but the defendant railway company had submitted no brief on the appeal, nor did it introduce any testimony at the trial. There can be no question of the negligence of the motorman, who certainly could have stopped his car in time to avoid the collision, if he had had it under proper control as he approached the corner of Waverly place. Nor was the driver Dunn guilty of contributory negligence. He had a right to cross the tracks at Waverly place, when the car was sixty-five feet away, relying on the presumption that the motorman would respect his right to so cross, and would use ordinary care to prevent a collision. There appears to have been no reason for an exceptional degree of care on the part of Dunn. So far, therefore, as the defendant railway company is concerned, the verdict must be upheld. As to the defendants Doyle another aspect is presented. These two defendants, i.e. James and Nathaniel Doyle, were bailees for hire, and as such they were liable to plaintiff only for lack of ordinary care. The plaintiff unquestionably showed that the Doyles, as bailees of plaintiff, had received from plaintiff the latter's property and had failed to restore the same to plaintiff. The Doyles, on the other hand, showed affirmatively the existence of circumstances affording a legal excuse for their omission to so restore plaintiff's property, to-wit: that the same was destroyed by the act of a third party. without any fault on the part of the said defendants Doyle. The defendants Doyle showed that they used plaintiff's property with the ordinary prudence and care which devolved upon them as bailees for hire of plaintiff.
We think the judgment should be affirmed as to the defendant railway company, with costs to plaintiff, but reversed as to the defendants Doyle, with costs to said defendants.
DOWLING, J., concurs; DUGRO, J., taking no part.
Judgment affirmed as to defendant railway company, with costs to plaintiff, but reversed as to defendants Doyle, with costs to said defendants.