
    CHARLES CORDS, JR., by Guardian, &c., Respondent v. THE THIRD AVENUE RAILROAD COMPANY, Appellant.
    
      Negligence, action to recover damages for injuries caused thereby. Failure of proof, etc.
    
    The complaint in this action alleged that the plaintiff “was violently struck and seriously injured by one of the cars of the defendant, and through its negligence and carelessness, and the negligence and carelessness of its employees or servants ” the injury was caused, etc. This allegation was denied by the defendant. The court charged the jury, in substance, that if there was any negligence, it must be found in the negligence of the driver of the car, and for his negligence the defendant was responsible. To this portion of the charge the defendant excepted, and stated as the ground of the exception, that there was no proof that the driver was the defendant’s employee, or that it was responsible for him. -
    
      Held, that by this exception to the charge the attention of the court was drawn to the fact that there was no proof that the driver was employed by the defendant, and there being no evidence that the driver was employed by the defendant, there was no evidence of defendant’s negligence, and for this reason the judgment was reversed.
    Before Sedgwick, Ch. J., Truax and Dugro, JJ.
    
      Decided April 15, 1889.
    Appeal from a judgment entered upon a verdict of a jury, and from an order denying a motion for a new trial.
    
      
      Hoadley, Lauterbach & Johnson, attorneys, and Wm. JSf. Cohen, of counsel for appellant.
    
      Miller & Savage, attorneys, and George W. Miller, of counsel for respondent.
   By the Court.—Truax, J.

The action was brought to recover damages for injuries which the plaintiff alleged that he sustained through the negligence of the defendant. The defendant denied its negligence.

It was shown on the part of the plaintiff that he was injured by one of the cars that run through 125th street in the city of New York, while he was near Second avenue.

The allegation of the complaint was that the defendant owned this car. • This allegation was denied by the defendant.

At the close of the plaintiff’s case the defendant moved to dismiss the complaint on the ground, with other grounds, that there was no evidence of any negligence on the part of the defendant. At the close of the whole case he renewed this motion. The motion was denied, and then the defendant asked the court to direct a verdict for the defendant on the same ground. This motion was also denied. To each of these denials the defendant duly excepted.

The court charged the jury, that if there was any negligence on the part of the defendant it must he found in the negligence of the driver who drove the horses attached to the car in question. No other possible ground is disclosed by the evidence. But for said driver’s negligence the defendant is responsible.” To this the defendant duly excepted, and stated as the ground for such exception, that there was no proof of the driver’s being , the defendant’s employee, or that it was responsible for him.

We are of the opinion that the attention of the court was not specifically directed to the fact that there was a failure on the part of the plaintiff to show that the defendant owned and controlled the car which caused the injury and employed the driver of that car, by the motion to dismiss the complaint on the ground stated; but the attention of the court was drawn to this fact by the exception to the portion of the charge above given. An examination of the case shows that there is no evidence that the driver, who was on the car at the time of the accident, was employed by the defendant. There is no evidence that the defendant owned or controlled the cars running through 125th street, and therefore there is no evidence in the case that the defendant was negligent.

For this reason, the judgment is reversed and a new trial is ordered, with costs of this appeal to the party who finally prevails in the action.

Sedgwick, Ch. J., and Dugro, J., concurred.  