June Term, 1899.
Robert Thorne, for the appellant.
Frederick E. Crane, for the respondent.
The action is to recover damages for personal injuries. The plaintiff, a boy seven years old, was standing at the edge of the sidewalk, by the side of a coal box which stood there, looking at other boys playing in the street. There was a push cart in the carriageway way, immediately in front. The driver of one of defendant's beer trucks left his truck and team standing unattended in the street in front of a saloon near by, while he went in to see a sick friend. During the driver's absence the horses started, and when they had gone from twenty to forty feet a stranger stopped the team and drove them back to the saloon. In so doing he drove the truck against the push cart, which, being overturned, threw the boy against the coal box. The driver of the truck testified that he was on his return to the brewery, having delivered all the beer and his truck being full of empty kegs. He further stated that where the accident occurred was not on his direct route to the brewery, but that he had deviated from his course for a couple of blocks for the sake of stopping to see a friend. The only questions that it is necessary to consider upon this appeal are raised by the denial of the defendant's motion to dismiss the complaint and a refusal to charge one request. The motion for a nonsuit was based on two grounds: First, that by his deviation from the direct course to the brewery the driver had ceased to be in the discharge of his master's service; second, that the master was not liable for the act of the stranger who caught the horses and returned them to the saloon.
The first objection to the recovery raised by the appellant is clearly untenable. The duty of the driver's employment required him to drive the truck back to the brewery. Though he deviated from his direct road, still the conduct and management of the team on the course he took were none the less services in the course of his employment. At most his acts constituted misconduct in his employment, not an abandonment of it. The case is not at all similar to one where the servant takes his master's team for a purpose unauthorized and solely his own. In such a case the driver would not be acting in the service of his master. But here the driver did not take the truck as a vehicle or means of transporting himself the two blocks he went out of his way, but intending to go to see his friend and at the same time intending to return the truck to the brewery, as was his duty, he drove the truck over the route adopted for the very purpose of continuing his service, in taking charge of the team and truck, and not for his own purposes. The case falls within that of Quinn v. Power ( 87 N.Y. 535), where it was held that the owner of a ferryboat was liable for the negligence of the pilot in charge, though the pilot deviated from his course to permit a person whom he had taken gratuitously as a passenger to board a vessel in the river. It is true that the act of the driver in going into the saloon was not in his master's service. For that reason, had he while entering the saloon by his carelessness run against and injured any one, the master would not have been liable. It was not the going into the saloon that caused the accident, but leaving the horses unattended and untied, and this was negligence in the master's business, for it was the duty of the master not to leave his team unsecured.
We are, also, of opinion that the defendant was responsible for the conduct of the stranger who stopped the team and drove the truck to the saloon. The question of what is the proximate and efficient cause of an accident is often the occasion of somewhat metaphysical distinctions and the subject of diverse opinions. Of late years the tendency of the authorities has been to refer the accident to the original fault which set in motion the circumstances culminating in the injury. (S. R. Neg. § 30.) In Lowery v. Manhattan Railway Co. ( 99 N.Y. 158) coals carelessly dropped from an engine of the railroad fell upon a horse in the street, rendering him unmanageable. The driver, to stop the horse, drove him against the curb, injuring the plaintiff. It was held that an error of judgment on the part of the driver as to the proper course to adopt in an emergency that had occurred would not relieve the railway company from liability. The question in this case is somewhat broader than that in the one cited. The court was asked to charge that the defendant was not liable for the negligence of the stranger who seized the team. This was refused, and the defendant excepted. We have, therefore, to determine whether the rule is the same in the case of the intervening negligence of a third party as in the case of a mere error of judgment. We think that depends on the nature of the occurrence. Here the horses having started, there arose a great risk that serious accidents might occur. This certainly justified any bystander in stopping the horses. Now if the whole emergency or peril had then ceased, from that time the defendant would not have been responsible for the acts of the stranger. But it had not ceased. The team and truck could not be left in the middle of the carriageway obstructing public travel, besides subjecting other travelers on the highway to danger. The same condition that authorized the bystander to stop the horses, also authorized him to drive the team and truck to a position where they would cease to be an obstruction and menace to public travel. We think that one of the dangers to be fairly anticipated from leaving horses unattended in a street is that if they start to run off, the persons who attempt to stop them may be careless or ignorant of the management of horses and thus jeopardize the safety of people on the highway. It is settled by authority that where one leaves a horse unattended and untied in a populous city, he may be held responsible for accidents occasioned by the horse running away, even though the runaway is caused by boys throwing missiles. ( McCahill v. Kipp, 2 E.D. Smith, 413; Pearl v. Macaulay, 6 App. Div. 70.) In such cases the leaving the horses unattended is regarded as the proximate cause of the accident. We cannot see any difference in principle between those cases and the one before us.
The judgment and order appealed from should be affirmed, with costs.
Judgment and order unanimously affirmed, with costs.