Firlik v. Meneely & Co.

Headnote

Negligence — motor vehicles — collision between automobile and horse and wagon — when presumption that automobile was being used in business of owner overcome.

Firlik v. Meneely & Co., 190 App. Div. 922 , affirmed.

Appeal from a judgment, entered January 9, 1920, upon an order of the Appellate Division of the Supreme Court in the third judicial department, reversing in part a judgment in favor of plaintiff entered upon a verdict and directing a dismissal of the complaint as to the defendant, respondent, in an action to recover for personal injuries and injury to property alleged to have been sustained by plaintiff as a result of a collision between his horse and wagon and an automobile owned by defendant, respondent. The only question involved was as to the sufficiency of the evidence to warrant the submission to the jury of its liability for the accident and the correctness of the trial court’s charge and refusals to charge on the same subject. Meneely & Co. admitted that there was sufficient evidence to the effect that the automobile that struck the plaintiff’s wagon was at the time of the accident owned by it and registered in its name and that- upon the night of the accident in

question such automobile was being used by one of the officers of the corporation and that, therefore, the presumption existed that the driver of the car was the agent of Meneely & Co., and engaged in its business. It, however, insisted that by its evidence it had overcome such presumption and that plaintiff had offered no additional evidence on the subject, and that, therefore, its motion for a dismissal of the complaint should have been granted.