
    ANNA MORTON, ADMINISTRATRIX AD PROSEQUENDUM, PLAINTIFF, v. HARDMAN-WILKIE CONSTRUCTION COMPANY ET AL., DEFENDANTS. ANNA MORTON, ADMINISTRATRIX, PLAINTIFF, v. HARDMAN-WILKIE CONSTRUCTION COMPANY ET AL., DEFENDANTS.
    Submitted May term, 1929
    Decided October 21, 1929.
    Before Gummebe, Chief Justice, and Justices Kalisch and Campbell.
    Por the rule, Ralph E. Cooper.
    
    Contra, Raymond E. Taylor and William E. Ilolmwood.
    
   Pee Cubtam.

The Hardman-Wilkie Construction Company was the owner of a one-ton Eord truck which on September 28th, 1927, was operated by and in the control of Hugh M. Wilkie, as its agent and servant. On that day he carted a load of stone sills to the Kearny fire house, at Kearny avenue, in Kearny.

The material was delivered to the rear of the fire house on Maple street. The truck was run upon the rear of the lot and turned around so that it faced Maple street. Being upon a grade sloping toward Maple street, it is said, the rear wheels were blocked, the emergency brakes applied and the motor stopped. This is disputed, however. Three men in the employ of the mason contractor who was doing the work on the fire house unloaded the sills. Some fifteen or twenty minutes after this work was completed the truck was seen to be in motion, proceeding toward Maple street. The driver, the defendant Hugh M. Wilkie, was not upon it but was running after it. ‘ The truck proceeded to and over Maple street and into and along Alexander street where it ran over Peter Morton, plaintiff’s decedent, injuring him so that he died from such injuries.

A trial of the cause resulted in verdicts in favor of the plaintiff and against the Hardman-Wilkie Construction Company, the owner of the truck, and against the plaintiff and in favor of Hugh M. Wilkie, the driver and servant of the owner of the truck.

Three reasons are advanced why the verdict in favor of Hugh M. Wilkie should be set aside.

One only requires our consideration and that is that the. verdicts are clearly inconsistent, and this is so. The verdicts against the owner ■ are not sustainable except upon the theory of respondeat superior. It is claimed that the proofs show that the brakes on the truck were not in proper condition and that this was the cause of the happening. A careful examination of the proofs does not disclose any such situation.

The rule to show cause is therefore made absolute.  