Scheib v. New York City R. Co.

Full title: ALBERT SCHEIB, an Infant, by JOSEPH SCHEIB, His Guardian ad Litem…

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: Nov 16, 1906

115 App. Div. 578 (N.Y. App. Div. 1906)

100 N.Y.S. 986

Opinion

November 16, 1906.

Charles F. Brown [ Bayard H. Ames and James L. Quackenbush with him on the brief], for the appellant.

Thomas J. O'Neill [ Joseph A. Shay with him on the brief], for the respondent.

Present — HIRSCHBERG, P.J., WOODWARD, RICH and MILLER, JJ.

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 GRAY, 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 for discussion, and the judgment and order should be affirmed.

WOODWARD, J.:

Judgment and order unanimously affirmed, with costs.