Opinion
June, 1916.
Mordecai P. Springer, for appellant.
Julian S. Eaton (Martin B. Faris, of counsel), for respondent.
Plaintiff sued for the loss of services of her infant child owing to his being injured by defendant's automobile.
The sole testimony as to the control of the automobile was that of defendant's witness, his chauffeur. It appears that while the machine was owned by the defendant, his occasional chauffeur was a garage keeper, who frequently drove him mornings and evenings, but not afternoons. On this afternoon, as the chauffeur testified, he had express permission to drive the car on his own business and was doing his own errands around town in it when the accident happened.
The order setting aside the verdict recites: "Judgment set aside upon defendant's exception to refusal of motion to direct verdict for defendant, as I have concluded such direction should have been given as a matter of law. Reilly v. Connable, 214 N.Y. 586."
The learned judge below had, at the request of the plaintiff, charged the jury, without exception from defendant's counsel, that they might draw an unfavorable inference from defendant's failure to testify at all. There was thus present in this case not only the presumption arising from the ownership of the automobile, which in Ferris v. Sterling, 214 N.Y. 249, 253, was held to be sufficient to require submission of the issue of control to the jury, but there was the additional consideration of defendant's total absence. The testimony of the chauffeur, moreover, was merely in the most general terms: "I had to go to Flushing on some business of myself." In Reilly v. Connable, 214 N.Y. 586, relied on by the court below, it is quite evident that the decision is based on the consideration of the legal effect of the testimony of the defendant's witnesses alone, the same having been accepted as the true version of the accident, and no point was made of the weight to be attached to the presumption of ownership. There is nothing in that case to weaken the application of the rule firmly established in the Ferris case.
The learned judge below, therefore, was in error in concluding that he should have directed a verdict in favor of defendant as matter of law. Although, therefore, the reason for setting aside the verdict was incorrect, we must, nevertheless, examine the record to ascertain whether the result reached was not just ( Ross v. Metropolitan St. R. Co., 104 A.D. 378), for, if it was, the order must, nevertheless, be affirmed.
Defendant moved to dismiss the complaint at the close of plaintiff's case and renewed the motion at the conclusion of the entire case, and took due exception to the refusal. The ground alleged was that plaintiff had failed to prove any negligence. The motion should have been granted.
Plaintiff's son testified that he looked both ways before he crossed the street and saw no automobile; that he kept on looking and there was nothing in sight for several blocks. "I stepped down from the curb and kept looking up and down and was just going to step on the opposite curb when I was struck." "Q. Where were you knocked to? A. I cannot tell you. Q. You do not remember anything after that? A. Only When the policeman put me in the automobile." A companion, another boy, testified to the same effect, and added that he did not see defendant's automobile until after the accident about half a block away. Defendant's chauffeur was asked: "Q. Did you see these boys in front of you in the street? A. No, sir, not in front of me. * * * Q. Did you strike this boy with the front part of your car? A. I did not know that he was hit until I heard this woman hollering and telling me to stop" — at which he stopped at once and went back.
There is in all this not the slightest suggestion as to the manner in which the accident happened, and certainly no foundation for claiming that the defendant's chauffeur was guilty of negligence. Indeed, the plaintiff's brief does not even now point out in what respect it is claimed that the chauffeur was negligent.
Were it possible in the state of the record to dismiss the complaint, we should do so, but, as the record stands, the order setting aside the verdict and granting a new trial is affirmed, with twenty-five dollars costs to the respondent to abide the event.
GUY and PHILBIN, JJ., concur.
Order affirmed, with costs.