Opinion
November 9, 1926.
Appeal from Supreme Court of Erie County.
Donovan Raichle [ Frank G. Raichle of counsel], for the appellant.
William E. Barrett [ James O. Moore of counsel] for the respondent.
This action was brought to recover damages for personal injuries claimed to have been sustained by plaintiff on the 20th day of August, 1924, when he jumped from an auto truck owned by the defendant and driven by his chauffeur. The truck was carrying food supplies to an outing of defendant's employees. Plaintiff was to act as chef in serving the food which was being transported on defendant's truck. As they were proceeding along the highway toward their destination the driver of the truck was obliged to go down a steep hill, and lost control of the truck, and finally the driver jumped and advised plaintiff to jump, which he did, sustaining the injuries complained of.
In submitting the case to the jury the learned trial court said: "In reference to the alleged negligence of the defendant I will say this to you: The losing of the control of this car under the circumstances described by the chauffeur, no matter what that loss of control came from, was a negligent act."
The defendant duly excepted to this charge.
We think the learned trial court fell into an error in thus disposing of the question of the negligence of defendant's servant. The question of such negligence should have been left to the jury on all the evidence.
The judgment should be reversed on the law and a new trial granted, with costs to appellant to abide the event.
All concur. Present — HUBBS, P.J., CLARK, SEARS, CROUCH and TAYLOR, JJ.
Judgment reversed on the law and new trial granted, with costs to appellant to abide event.