Majority
p. 268Irving Brenner, an Infant, by Louis Brenner, His Guardian ad Litem, Respondent, v. Florence Goldstein and Abraham Goldstein, Appellants. First Department, July 11, 1918.
Headnote
Negligence — motor vehicles — action against husband and wife for injury to boy by automobile driven by husband—evidence insufficient to establish negligence of husband — ownership of car by wife insufficient to predicate liability upon her.Action against a husband and wife for negligence in the operation by him for his own purposes of an automobile owned by his wife resulting in personal injuries to a boy. ' Held, that a finding of negligence is clearly against the weight of the evidence and that a judgment against the defendant husband should be reversed and a new trial granted.
Since the defendant wife was at home at the time of the'accident, and there was no evidence upon which her liability could be predicated other than her ownership of the car, the complaint should be dismissed as to her.
Separate appeals by the defendants, Florence Goldstein and another, from a judgment of the Supreme Court in favor óf the plaintiff, entered in the office of the clerk of the county of New York on the 8th day of December, 1917, upon the verdict of a jury for $10,000, and also an appeal by Florence Goldstein from an order entered in said clerk’s office on the 20th day of December, 1917, denying her motion for a new trial made upon the minutes. The defendant Abraham Goldstein also appeals from an order entered in said clerk’s office on the 7th day of December, 1917, denying his motion for a new trial.
Frederick J. Flynn of counsel [Alfred W. Andrews, attorney], for the appellant Florence Goldstein.
Milton Mayer of counsel [Fred H. Rees and Goodman Block with him on the brief], for the appellant Abraham Goldstein.
Mortimer Brenner, for the respondent.
As the front of the automobile passed the injured boy without touching him, according to the testimony of all of the eye-witnesses, considering the testimony of defendants’
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disinterested witnesses and the probabilities of the case, we are of the opinion that the finding of negligence is clearly against the weight of the evidence. As to the defendant Florence Goldstein there was no evidence upon which liability could be predicated other than her ownership of the car. The undisputed testimony established that at the time of the accident she was in bed at her home and that her husband was operating the automobile for his own purposes.
The judgment is reversed, with costs, and the complaint dismissed as to appellant Florence Goldstein. The judgment against the appellant Abraham Goldstein is reversed and a new trial ordered, with costs to said appellant to abide the event.
Present — Clarke, P. J., Laughlin, Dowling, Shearn and Merrell, JJ.
Judgment reversed, with costs, and complaint dismissed, with costs as to defendant Florence Goldstein. Judgment as against defendant Abraham Goldstein reversed and a new trial ordered, with costs to said appellant to abide event.