Murray v. Metropolitan Street Railway Co. — 84 N.Y.S. 876

Majority

p. 876

MURRAY v. METROPOLITAN ST. RY. CO.

(Supreme Court, Appellate Term.

November 18, 1903.)

Headnote

1. Imputed Negligence—Fellow Servants.

Even if the negligence of the driver of an ice wagon, with which a street car collides, can be imputed to one riding on the wagon as a helper, he not having interfered in any manner with the driving, the question having been submitted to the jury as a question of fact, their finding in his favor should not be disturbed.

Appeal from City Court of New York, General Term.

Action by Mark Murray against the Metropolitan Street Railway Company. From a judgment on a verdict for plaintiff, and from an order denying a motion for a new trial, defendant appeals. Affirmed.

Argued before FREEDMAN, P. J., and BISCHOFF and BLANCHARD, JJ.

Henry A. Robinson (Bayard H. Ames and F. Angelo Gaynor, of counsel), for appellant.

John C. Robinson, for respondent.

The plaintiff recovered for personal injuries sustained in a collision between a car of the defendant and an ice wagon on which he was riding as a helper. He was not driving, nor did he interfere in any manner with the driving. It may be questioned whether, under such circumstances, he can be charged with any negligence on the part of the driver. But even if it were so, the answer to it is that such question was submitted to the jury as one of fact, and that their finding upon this point in favor of the plaintiff should not be disturbed. The questions of defendant’s negligence and of plaintiff’s freedom from contributory negligence were properly submitted to the jury, and their verdict cannot be held to be against the weight of the evidence. The record discloses no reversible error.

The judgment and order should be affirmed, with costs. All concur.