Hornstein v. Southern Boulevard Railway Co. — 138 N.Y.S. 1080

Majority

p. 1080

HORNSTEIN v. SOUTHERN BOULEVARD RY. CO. et al.

(Supreme Court, Appellate Term,. First Department.

January 9, 1913.)

Headnote

Master and Servant (§ 330*)—Relationship—Evidence—Presumptions.

• While it is presumed that the driver of a motor car is the servant of ■the owner of the car, that presumption may be rebutted by proof that the car was rented, and he was the servant of the lessee, and thus exonerate the owner from liability for the driver’s negligence.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 1270-1272; Dec. Dig. § 330;* Negligence, Cent. Dig. § 240.]

•For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes

Appeal from Municipal Court, Borough of the Bronx, Second District.

Action by Pearl Hornstein, by Bertha Hornstein, her guardian ad litem, against the Southern Boulevard Railway Company and David Dreyfuss. From a judgment for plaintiff, defendant Dreyfuss appeals. Reversed and dismissed.

Argued December term, 1912, before SEABURY, GUY, and GERARD, JJ.

Walter G. Evans, of Rome, for appellant.

Frank M. Franklin, of New York City, for respondent.

The defendant appeals from a judgment in favor of the plaintiff, entered on the verdict of a jury in an action to recover damages for personal injuries caused by a collision between a street railway car and an auto belonging to defendant, which was being operated! on one of the public highways at the time.

p. 1081

The evidence discloses that the auto in question had been rented by defendant for the, day, without a chauffeur, to one Christie, and that the chauffeur who was operating the auto at the time of' the accident was in no way connected! with defendant’s establishment, was not generally or specifically in his employ, but was obtained by Christie from another garage, was employed by him, and was under his control and subject to his orders at the time of the accident.

The plaintiff respondent contends that, as matter of law, the. chauffeur who operated the auto at the time of the accident was presumptively in the employ of the owner of the car; but this presumption has been entirely overcome by the uncontradicted evidence in the case, showing that, as matter of fact, the chauffeur was in the employ of Christie.

The judgment must therefore be reversed, with costs, and! the complaint dismissed, with costs. All concur.