Bishop v. Ely — 9 Johns. 294

Majority

p. 294

Bishop against Ely and others.

NEW YORK,

Oct. 1812.

Headnote

A. lent his wagon to B. & C. who put their own horses to it; and Station of b" wiih thewaggon. B gon, and run" with so much violence who xvas be-road, and had thatthehorse b the of the waggon after díed°ín 6res^ass°bro”t fcy against it ’was held,’ a^mere pasquant-" tiabíe" with B. and C. for a joint trespass.

THIS was an action of trespass, brought against the defendant f°r driving against the horse of the plaintiff, on the highway, so forcibly that the tongue of the defendants’ waggon pierced the breast of the plaintiff’s horse, in consequence of which he died.

E l y, one of the defendants, pleaded not guilty, and that he was a mere passenger in the waggon. The other two defendants suffered judgment by default to be entered against them. The cause was tried at the Washington circuit, before Mr. Justice Yates, in June, 1812.

A wit i ess for the plaintiff testified, that he was with the plaintiff, pitiminí icísuaacU) mat, jjg wao wjuii me jjiaimijLi^ and hearing a waggon coming rapidly on the road, advised the plaintiff to turn out of the road, which he immediately did, quite ouf: °fthe road to the right, when the tongue of the waggon of the defendants struck the breast of the plaintiff’s horse with great force, and when the plaintiff said he hoped nothing was hurt, one of the defendants abused him for not keeping out of the road.

Another witness saw the defendants at a tavern, about half a mile from the place where the plaintiff’s horse was injured, and they were in high spirits, and talking of what had happened. Ely said to one of the defendants, he must take care how he run against people. The horse died of the wound he received.

The waggon belonged to Ely, and the horses to the other defendants, one of whom (A.) was driving the waggon when the plaintiff’s horse was hurt. Ely was asked by the other defendants to go with them in the waggon.

The jury found a verdict for the plaintiflj against Ely, as equally guilty with the other defendants.

A motion was made to set aside the verdict, and for a new trial.

Crary, for the defendants, contended, that Ely had done no act that could make him a trespasser.

He was a mere passenger in the waggon, and had no control over the horses. To make a person liable, in such case, it must be shown that he was driving the waggon or carriage. Would a passenger in the public stage coach be liable as a trespasser, if the driver should run against another carriage ?^[2] It does not appear that Ely was in any way consent” mg to the trespass, or that he could have prevented it,

p. 295

Z. R. Shepherd, contra, insisted that Fly was not a mere passenger.

He was the owner of the v~aggon, and being in it at the time, he must be coi~sidered as a party to the trespass. He was one of the company in the waggon, and present at the time the trespass was committed; and if liable at all, it must be in an action of trespass.^[2]

In the case of M'Manus v. Cricket, (1 East, 106.) the master was not preseni, and it was, therefore, held, that he could not be liable as a trespasser.

Here was evidence sufficient to charge all the three defendants with a joint trespass. They were all together in the waggon, ard each had his due shore of interest in the horses and waggon. Ely owned the waggon, and was not in the light of a mere passenger. The case of Davey v. Chamberlain (4 Esp. N. P. 229.) applies. It does not appear that Ely dissented, at the time, from the violent manner of driving the team, nor at the time of the accident; and when seen, shortly after, at the tavern, he acted as one of the party, jointly concerned in the act, for they were all in high spirits, and he expressed no dissent, or even regret.

Motion denied.