Hodgson v. Conklin — 50 A.D. 604

Majority

p. 604

Robert Hodgson, Respondent, v. Henry A. Conklin, Appellant.

Headnote

Negligence — when the question as to ike ownership of a truck which caused an injury should be submitted to the jury.

In an action "brought to recover damages for personal injuries sustained by the plaintiff in consequence of his being struck by a truck bearing the defendant’s name, of which it was shown that he was at one time the owner, the defendant testified that, at the time of the accident, he did not own any truck, having previously sold his tracks to his wife. The driver of the truck testified that he was in the employ of the defendant’s wife, but admitted that he never received any pay or any orders from her, and that his orders all came from the defendant or some other employee. No documentary proof indicating a change in t.he ownership of the business was produced and the defendant's wife was not sworn as a witness although she resided in the city where the trial was had.

Held, that the question whether the driver was engaged in the defendant's business with the defendant’s truck, at the time of the accident, was properly submitted to the jury.

Appeal by the defendant, Henry A. Conklin, from a judgment, of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 17th day of October, 1899, upon the verdict of a jury for $375, and also from an order entered in said clerk’s office on the 25tli day of October, 1899, denying the defendant’s motion for a new trial made upon the minutes.

" Cromwell G. Macy, for the appellant.

Isaac L. Miller [Albert E. Ilartcorn with him on the brief], for the respondent.

The plaintiff obtained a verdict in an action based on the negligence of the defendant. The specific charge was that the driver of a truck belonging to the defendant carelessly backed into the sidewalk of one of the public streets in New York, borough of Manhattan, and injured the plaintiff, a pedestrian on the sidewalk, who ivas at the time entirely free from blame. The case was carefully tried, and was submitted to the jury in an unexceptionable charge and to which no exception was taken.

The only question presented on the appeal is that there was not sufficient evidence as to the ownership of the truck. It is apparently undisputed that the defendant was at one time the owner of the truck, and it was proved that his name, as owner, was painted on it at the time of the accident. This made a prima facie case. (Seaman v. Koehler, 122 N. Y. 646 .) The defendant testified that he did not own any truck at the time of the accident, but that the trucks which formerly belonged to him had been sold before the accident to his wife. The driver testified that he was in the employ of the defendant’s wife, but admitted that he never received any pay or any orders from her, and that his orders all came from the defendant or some other employee. The facts that the name upon the truck had not been changed, but that it was still used with the defendant’s name as owner; that the driver was working under the defendant’s orders; that no papers or other documentary proof indicating a change in the ownership of the business was produced; that the wife of the defendant was not a witness although residing at the time in the borough of Brooklyn, where the trial was had, together with the defendant’s interest in the case, required the submission to the jury of the question as to whether or not the driver was not in fact engaged in the defendant’s business, and with the defendant’s truck, at the time of the accident. The question was so submitted without exception, and the verdict and judgment were warranted by the proof.

The judgment and order should be affirmed, with costs.

Judgment ana order unanimously affirmed, with costs. °

Cases cited

Seaman v. Koehler 122 N. Y. 646 N.Y. 1890-10-31 p. 604