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Ciuffi v. Metropolitan Street Railway Co.

84 N.Y.S. 918 Court N.Y. App. Term Decision date 1903-11-18 English

Delivered by FREEDMAN, P. J.

Contents

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p. 918
CIUFFI v. METROPOLITAN ST. RY. CO.
(Supreme Court, Appellate Term.
November 18, 1903.)

Headnote

1. Imputed Negligence—Driver of Wagon—Co-Servant.
Where employes of the same master, riding on a wagon, were not engaged in a common enterprise, and the one injured in a collision had no control over the driver, and did not assume to influence him in a way leading to the accident, the court cannot say as a matter of law that there was an imputation of negligence.
Appeal from City Court of New York, Trial Term.
Action by Antonis Ciuffi against the Metropolitan Street Railway Company. From a judgment for plaintiff and the denial of a new trial, defendant appeals. Affirmed.
Argued before FREEDMAN, P. J., and BISCHOFF and BLANCHARD, JJ.
Henry A. Robinson, Bayard H. Ames, and F. A. Gaynor, for appellant.
Goepel & Wahle and Chas. G. F. Wahle, for respondent.

Although both the plaintiff and the driver of the wagon were employed by the same master, they were not, while riding on the wagon, engaged in a common enterprise. The plaintiff had not the slightest control over the driver, nor did he assume to influence him in a way which led to the collision.. The case is not one in which it can be held that the plaintiff is chargeable, as matter of law, with the negligence of the driver as a comrade engaged in a common enterprise, and no request was made to submit the question to the jury as one of fact. The exceptions taken are without merit. ,

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