Seaman v. Koehler — 33 N.Y. St. Rep. 729

Majority

p. 729

Selah D. Seaman, Resp’t, v. Bertha Koehler, Ex’rx, Appl’t.^[1]

(Court of Appeals, Second Division,

Filed October 31, 1890.)

Headnote

1. Negligence—Evidence—Of ownership of truck.

Proof that defendant’s firm name and place of business was on a truck which was driven against plaintiff; that there were many trucks qf the same kind employed in the brewery business of said firm at the said, location; that the truck was loaded with ale barrels at the time of the accident; that it left the brewery that morning in charge of the same driver at 9:30 A. m., and had made one delivery; that_ it left again between 12 and 1 o’clock and was engaged in the second delivery when plaintiff was injured, which facts were denied by no one, is sufficient to authorize the jury to infer that the truck belonged to defendant’s firm, and that the driver was in its employment when he negligently ran against plaintiff.

2. Same—Judicial notice.

The court, on appeal, will not take judicial notice of the relations of the driver and conductor of a street car, for the purpose of reversing a judgment.

Appeal from a judgment of the general term of the supreme court, in the second judicial department, affirming a judgment enterered on a verdict and also affirming an order denying a motion for a new trial.

Action to recover damages for personal injuries alleged to have been inflicted upon the plaintiff by a servant of the defendant’s testator.

At the time of the accident plaintiff was a conductor of an open street car, drawn by horses, in the city of Brooklyn. A truck alleged to belong to the defendant’s testator was negligently driven by the driver in charge thereof against the plaintiff while he was standing upon the narrow platform running lengthwise of the car, engaged in collecting fares. Mr. Koehler died during the pendency of this appeal, and his personal representative has been duly substituted.

Further facts appear in the opinion.

II. J. Kingsbury, for app’lt; Charles J. Patterson, for resp’t.

As the ownership of the truck was at issue, it was necessary for the plaintiff to make out a prima facie case in that regard, but the defendant contends that, the evidence furnished was insufficient for that purpose.

It was admitted that the defendant was “ a member of the firm of H. Koehler & Co., Twenty-ninth street and First avenue, in the city of Mew York.” It was proved that the name on the truck in question was “ II. Koehler & Co., Twenty-ninth street and First .avenue,” and that there were many trucks of the same kind employed in the brewery business of said firm as carried on at the location aforesaid. It also appeard that said truck was loaded with ale barrels at the time of the accident; that it had left the brewery that morning in charge of the" same driver at half-past nine, and had made one delivery; that it left again between twelve and one o’clock, and was engaged in the second delivery

p. 730

when the plaintiff was injured. These facts were denied by no one, and they were sufficient, as we think, to authorize the jury to infer that the truck belonged to defendant’s firm, and that the driver thereof was in its employment when he negligently ran against the plaintiff. A prima facie case was thus made out for the consideration of the jury, and if the defendant’s firm did not in fact own the truck or employ the driver, it was incumbent upon him to produce some evidence upon the subject.

The trial judge charged the jury that negligence on the part of the driver of the street car could not be imputed to the plaintiff, or the conductor thereof, and the defendant excepted. The nature of the relation between the driver and the conductor was not shown, but it appeared that the latter, by means of signals to the former, stopped the oar to let off and take on passengers. The record does not otherwise disclose whether the driver was subject to the orders of the conductor, or was in any way under his control, and the court will not take judicial notice of their relations for the purpose of reversing a judgment. There was not enough evidence to permit the jury to pass upon the question, and no request was made for instructions to them upon the subject.

Without intimating any opinion except upon the case as here presented, we think that under the circumstances the charge as made was free from error.

After examining the various exceptions to which our attention has been called, we are of the opinion that the judgment should be affirmed.

All concur, except Bradley, J., not voting, Haight, J., absent, and Brown, J., not sitting.