
    James Edwards, Appellant, against Lyman N, Jones, Respondent.
    (Decided May 22d, 1884.)
    In an action to recover damages for injuries alleged to have been the result of negligence of defendant and his servants, it appeared that the injury was caused by apparatus which was in charge of a servant of defendant, but that it occurred while such servant was temporarily absent and the apparatus was under the control of a stranger; and plaintiff did not show that such stranger assumed control of it with the knowledge or consent of defendant’s servant. Held, that the complaint was properly dismissed.
    Appeal fro.m a judgment of the City Court of New York affirming a judgment of that court entered upon the dismissal of a complaint.
    The facts are stated in the opinion.
    
      J. A. Hyland, for appellant.
    A. Q. Anderson, for respondent.
   Beach, J.

The difficulty with the plaintiff’s case, caus»' ing a dismissal of his complaint by the learned justice of the City Court presiding at trial term, did not arise from weakness in legal position, but for want of sufficient evidence to make a prima facie case upon the facts.

. The plaintiff was bound to produce proof authorizing the jury to find that the person in charge of the defendant’s hoisting apparatus sustained a relation to the defendant •which would not make the defendant responsible for his negligence. If he failed in this, there could be no question' for the jury. The evidence upon this point was given by the witness Bray, and is brief enough for quotation. He says: “ The regular driver went away to the water closet and left a strange hand at it. The strange man let it go " before he was told, and the tub fell, and it came right down on the boat.” On cross-examination he testifies: “ He (the defendant’s driver) left it (the horse), and then a strange man took hold.” Again: Question. “ And while he was gone, this strange man came and took hold of the horse and lifted the spring and started it, and then the tub came down?” Answer. “Yes, sir.”

This testimony does not show the stranger assumed control with the knowledge or assent of the defendant’s servant; one part would support such a conclusion, another is equally strong in favor of the defendant’s servant having been ignorant of the stranger’s act.

• In the one event the defendant would have been liable for the stranger’s negligence, he having been left in charge by defendant’s servant (Simons v. Monier, 29 Barb. 419; Althorf v. Wolf, 22 N. Y. 355 ; Gleason v. Amsdell, 9 Daly393). If the servant, within the scope of his duty, enabled another by his assent to injure a third party, the master is liable. In the other view—i. e. that the stranger took control of the hoisting apparatus without the knowledge or assent of the regular driver—the defendant would not be liable, the stranger being an intruder or volunteer. This distinction in my opinion is clearly deducible from the authorities cited.

The plaintiff failed to give evidence authorizing a finding that the strange man took charge with' the driver’s knowledge. The proof was quite as potent in support of the driver’s ignorance. For this reason it was right to dismiss the complaint.

The judgment should be affirmed, with costs and disbursements.'

Charles P. Dalt, Ch. J., and Larremore, J., concurred.

Judgment affirmed, with costs.  