
    Samuel S. Richardson, Resp’t, v. Edward Van Ness, Impleaded with David Lyons, App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed July 6, 1889.)
    
    Negligence—Public highway—Collision.
    The action was brought to recover for an injury sustained by plaintiff as the result of a collision on a public highway. The defendant, Van Ness, applied to the agent of a transportation company to furnish him a conveyance to transport himeelf and wife from one station to another. The agent undertook to do so, and hired defendant L. as driver. While proceeding along the road they came up behind plaintiff’s carriage, and in an endeavor to pass it the collision occurred. Defendant did not assume to control the conduct of L. in any way, further than asking him whether they could not pass the wagon in front of them, but left him to perform the duty of passing plaintiff according to his own judgment. It appeared that when L. pulled out to pass plaintiff, the latter whipped up his horses into a run, and L., in turn, urged his, and they continued in this way until the collision occurred. Held, that the complaint should have been dismissed as to the defendant Van Ness, as no cause of action was established against him.
    Appeal by the defendant Van Ness from the judgment herein, in favor of the plaintiff after a trial at the circuit, and from the order denying defendant’s motion for a new trial.
    
      C. S. Lester, for app’lt; E. T. Brackett, for resp’t.
   Ingalls, J.

This action was brought by the plaintiff to recover damages for an injury which the plaintiff received as the result of a collision in a public highway, between a carriage and horses driven by the plaintiff, and a carriage and horses driven by the defendant Lyons, which collision and injury the plaintiff claims was produced by the negligent conduct of Lyons in the management of the team which he drove, and to which the defendant, Van Ness,, contributed by directing Lyons to pursue the course which he did, and thereby became also liable to the plaintiff. The defendant, Van Ness, accompanied by his wife, started from the city of New York upon an excursion to the Adirondacks, and when upon the cars, between Saratoga. Springs and North Creek, R. B. Scarrett, who was at the time an agent of the Blue Mountain Lake Stage and Transportation Company, came into the car where Van Ness was sitting, and the latter applied to such agent for transportation from North Creek to Blue Mountain Lake for himself and wife, and Scarrett undertook to furnish a suitable conveyance, charging therefor eleven dollars, which Van Ness paid, and Scarrett delivered to him a ticket, as follows:

“Blue Mountain Lake Stage and Transportation Company, No. 212 North Creek, August 3,1888. Special ticket. The bearer, Mr. Van Ness, has engaged two seats in patent covered buck-board carriages, through to Blue Mountain Lake; party of two; number and value of ticket exchanged; price eleven dollars; cash eleven dollars; buck-board No.—. R. B. Scarrett, Agent.”

Scarrett testified at the trial as follows: “The defendant, at that time, paid me the eleven dollars, and I gave him his ticket. In pursuance of that ticket and agreement, I hired a buck-board for the purpose of fulfilling that contract, to transport defendant. I hired Mr. Lyons’ carriage.” When the cars reached North Creek the defendant, Van Ness, and his wife were conducted by Scarrett to such carriage, and Lyons took the driver’s seat and drove the team. After they had proceeded about two miles Mr. Van Ness, being disturbed by the dust which was raised by the teams in advance of theirs, addressed Lyons, as appears by his evidence, as follows: “I asked Mr. Lyons if he would have to keep behind them and take their dust, all day, and he said no, there is a place just beyond here where I can pass. I said that is all right; you will do so then. I had no other conversation with him on that subject. When we got to the forks of the road he got behind the rear coach as close as he could, and when he came to the place where the road forked he pulled his horses to the left and urged them forward to a sharp trot, and there were two carriages on the right that Lyons turned out to pass; they were about twenty-five feet apart,. as near as I can judge. The first ■carriage was driven by the plaintiff. He struck his horses and started them up into a run, and Lyons urged his horses into a run, and both continued running until the roads came together; Lyons got the point of intersection first, and plaintiff run his horses so that his near horse struck the off hind wheel of Lyons’ carriage; I was sitting on the off side of the back seat, and I could have put my hand over the side of the carriage ánd touched the harness of the near horse. I don’t know what further occurred to the plaintiff or his carriage.”

The plaintiff denies striking his team, but from all the circumstances we are inclined to think, that he did, and that he entered actively into the race for the purpose of keeping the lead. Except the remark of Van Ness, given above, we fail to discover a word or act on his part, which would justify an inference that he desired Lyons to pass the plaintiff’s team in an improper manner, and we think what he did say, fairly construed, does not justify any such inference. In the conversation with Mr. French, we fail to perceive that Van Ness made any admission which materially changes his version of the transaction. It appears that Van Ness was unacquainted with the road, and knew nothing of any opportunity which would be offered for passing the other teams, and must have depended entirely upon Lyons who was familiar with the route, and as we have seen from the evidence, it was Lyons who first made the remark, “ There is a place beyond here where I can pass,” to which Van Ness replied, “That is all right, you will do so then.” There was nothing objectionable in that remark of Van Ness. He did not assume to control the conduct of Lyons, but left him to perform the duty according to his own judgment and discretion, being conscious that he knew the route, and was familiar with the duty which he had undertaken to perform. The conduct of Van Ness, as disclosed by the evidence does not seem extraordinary or unreasonable. He had expressed to the Agent Scarrett, the desire to be transported as expeditiously as he reasonably could be, on account of his wife, who, he said, was timid, and averse to pursuing the journey after dark. For such purpose he had paid the agent an extra price for a conveyance, in which himself and wife would be the only passengers. It may be inferred that with so light a load, if Lyon had been allowed to pass the other teams, which were all much more heavily loaded, that the other passengers would not have been disturbed by the dust produced by the conveyance managed by Lyons, as it would probably have soon been out of the way of the other teams. Lyons took the side road, and but for the determination of the plaintiff to prevent his team from passing: the one which he drove, no trouble would have arisen, as it appears that the other teams did not enter the race, but allowed Lyons to drive by.

Lyons was the agent of the transportation company, and was in no sense to be regarded the agent or servant of Van Ness, and such was the view taken by the learned justice at the trial, as appears from his charge upon that question, in which he remarked to the jury as follows: “I am of opinion, in this case, that Lyons was not the servant of Mr. Van Ness. He was the servant of the transportation company, or at least employed by the transportation company, and in fact represented it. The defendant Van Ness employed the transportation company to send him from the station there to Blue Mountain Lake.” Such direction was clearly authorized by the facts of the case, and the law. applicable thereto. Story on Agency (4th ed.), § 453a, and cases there cited.

We fail to discover in the case anything which would justify the conclusion that the defendant Van Ness directed, advised or assisted in the perpetration of any wrong on that occasion. The learned justice further remarked, “It is proper for me to say that the act of the defendant in asking the driver to pass by was perfectly legitimate and proper. Certainly no wrong in that.” We fail to discover from the evidence what more Van Ness did or said upon that occasion which would justify even an inference that he committed, or even intended to countenance, any wrongful conduct on the part of Lyons. He did not assume to control Lyons, but allowed him to manage his team as he thought proper, doubtless assuming that Lyons was familiar with the route and the custom observed by drivers in the management of their teams in the transportation of passengers. The plaintiff and Lyons were both the servants of the transportation company, as Van Ness knew, and he certainly had no reason to suppose that either would be likely to do an act which would prejudice the company, or the passengers who were being transported by such company. All that Van Ness seems to have done after the remark which he made in reply to the declaration of Lyons, was merely to sit still in the carriage without uttering a word, so far as the case discloses, until the collision occurred, and was not aware that any injury had been done until some little time thereafter. From all the facts and circumstances of the case, we are convinced that no cause of action was established against Van Ness, and that the verdict was unauthorized. The complaint should have been dismissed as to such defendant as requested by his counsel.

The judgment must, therefore, be reversed, and a new trial ordered, with costs to abide the event of the action.

Learned, P. J., concurs; Landon, J., not voting.  