Kroenke v. Johnson

Headnote

Kroenke v. Johnson, 171 App. Div. 935 , reversed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered January 13, 1916, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term in an action to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant. Plaintiff while riding on Bedford, avenue in the borough of Brooklyn was run down and injured by an automobile owned by the city of New York, and operated by the fire department of the city of New York. The defendant, then fire commissioner of the city of New York, was using the car to go from 'fire«headquarters in New York to inspect new fire houses in Brooklyn, and returning therefrom to attend a presentation of medals. The car was being driven at the time by a subordinate of the defendant, a uniformed member of the fire department, subject to the orders and control of the defendant. The complaint was dismissed on the theory that because the relation between the defendant and the driver was not that of master and servant, no speed, however excessive, could tend to fasten upon the defendant a liability for the injury.