
    Charles Cords, Jr., by Guardian ad litem, Resp’t, v. The Third Avenue Railroad Company, App’lt.
    
      (New York Superior Court, General Term,
    
    
      Filed April 15, 1889.)
    
    Negligence—Failure of proof.
    In an action for damages for injuries sustained by plaintiff through the negligence of the defendant, where there was a failure on the part of the plaintiff to^ show that the defendant owned or controlled the car which caused the injury, and there was no evidence that the driver of the car at the time of the accident was employed by the defendant, a verdict for plaintiff will be reversed, and a new trial granted. The facts sufficiently appear in the opinion.
    
      Appeal by the defendant from a judgment entered on a verdict of a jury, and from an order denying a motion for a, new trial made on the minutes.
    
      Hoadley, Lcmterbaoh & Johnson, for app’lt; Miller & Savage, for resp’t.
   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 runs 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 wms 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 be found in the negligence of the driver who drove the horses attached to the cars 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 exceptions, that there was no proof of the driver 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 One Hundred and Twenty-fifth 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.

All concur.  