
    Joseph Jerome, an Infant, by Arthur Jerome, His Guardian ad Litem, Respondent, v. Peter L. Hawley, Appellant, Impleaded with Porter H. Wager.
    Third Department,
    November 15, 1911.
    Motor vehicle — negligence-—highway — injury to bicyclist — liability of passenger in automobile.
    One H. accepted the invitation of W. to ride with him and others in W.’s automobile. While they were riding the autompbile broke down. One P., who in his automobile was proceeding along the same road, offered to assist them. H. procured a rope fifty feet long and connected the two machines. He then entered P.’s car and the disabled machine was towed back to the city whence it had started. As the two cars were proceeding along one of the city streets P.’s car crossed the street. W. did not or could not turn his machine át once to follow aind thus the rope swept the street. While the cars were proceeding in this manner they overtook a bicyclist. The leading car passed him but the rope knocked him down and injured him. The lamps upon the automobiles were not lighted at the time. In an action by the bicyclist to recover for his inj mies,
    
      Held, that H. was not liable;
    That, assuming that H. was negligent in procuring the rope and was chargeable with the manner in which the cars were connected, the proximate cause of the accident was the negligence of W., the driver of the car in tow;
    That neither H. nor the driver of the forward car was bound to anticipate that W. would not cross the street when the forward car did.
    Betts, J., dissented,- with opinion.
    Appeal by the defendant, Peter L. Hawley, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 30th day of September, 1910, upon the verdict of a jury for $300, and also from an order entered in said clerk’s office on the 25th day of October, 1910., denying the said defendant’s motion for a new trial made upon the minutes.
    
      Robert W. Fisher, forthe appellants.
    
      Walter H. Wertime, for the respondent.
   Sewell, J.:

The action was brought to recover damages for personal injuries. At about six o’clock in the afternoon of May, 7, 1910, the appellant, having accepted the invitation of one Porter H. Wager, was riding with him and others in his automobile. They had gone about three miles" from Cohoes when the machine became disabled. Adam Peets, who was proceeding in the opposite direction in his automobile, offered to assist them. Hawley procured a rope fifty feet long, with which the two machines were connected, and in this Way the disabled machine was towed back to Cohoes, forty or fifty feet in the rear of the other. Wager and one of his-party rode, in his machine, while the rest of his party, including the. appellant, rode with Peets. The evidence on the part of the plaintiff tended to show that the defendants started down. Columbia, street on the left-hand side; that they soon turned to the right-hand side and after going a short distance “ the first one shoots to the left again, and left the other one on the right side. * * * That rope was crossing over Columbia street, * * slantways on Columbia street. The rope was tied on each one of the automobiles. The rope struck his bicycle, that knocked the bicycle down, and he fell to the ground.”

The plaintiff testified that he was going down towards the track on Columbia street, in the same direction as the automobile and somebody hollered to look out for an automobile, and I got out of the way. The first automobile went by, and when I turned my bicycle half way I. got hit by something and I went' down on the ground. * * * After I fell, somebody picked me up, and I noticed the automobile back. There was an automobile about five or six feet behind me.”

The court charged the jury that there was no dispute in the testimony that the lamps upon the machine were not lighted, and left it to them to say whether the defendants, in the exercise of reasonable care, ought to have had the lamps lighted, and whether any signal ought to have been given, under the circumstances of the case, by the parties operating the machine and whether any signal was given.

The theory upon which the action was tried and submitted to the jury was that the appellant was liable to the plaintiff, not only for the negligence of the owner of the car in which he was a passenger, but for the negligence of the owner and driver of the car in tow. I know of no principle upon which the appellant cán be held liable under the circumstances surrounding the driving of the cars on this occasion. The uncontroverted facts show that the appellánt did not employ, pay, direct or control the driver of either car in any way. His only connection with the accident was the fact that he was a passenger and procured the rope and assisted in tying it to the cars. It is also to be observed that, independent of the fact that the driver of the car, in which the appellant was riding as his guest, was not under the direction or control' of the appellant, so that his negligence, if there was any, cannot be imputed to the appellant, we have the undisputed fact that the negligence of this driver in operating his car was not the cause of the accident. His car was seen by the plaintiff, and had passed him when the accident occurred.

If it be assumed for the purposes of the argument that the defendant was negligent in procuring the rope, and is chargeable for the manner in which the cars were connected, it is clear that this negligence was not the proximate cause of the accident. The negligence of Wager, the driver of the car in tow, was an intervening and the responsible cause of i the accident. It was his omission to recross the street and to follow straight behind the other car. Neither Hawley nor the driver of the forward car was bound to anticipate that he would continue in the same direction and thereby cause the rope to sweep the street, without which the accident would not have happened. In this respect this case is not distinguishable on principle from Leeds v. New York Telephone Co. (178 N. Y. 118), where an intervening force came in upon the existing situation and produced the plaintiff’s injuries.

It follows, therefore, that the judgment and order appealed from should be reversed and a new trial granted, with costs to the appellant to abide the event.

All concurred, Kellogg, J., concurring in result in.memorandum, except Betts, J., dissenting in opinion.

Kellogg, J. (concurring in result):

The jury was justified in finding that the primary cause of the accident was the negligent act of the defendant Hawley in tying the trailing automobile to the other, which was fifty feet ahead of it, and that this negligent manner of drawing the automobile called upon him to observe the people in the highway and use care to prevent their falling into the trap which he had set. It was evident that if the . forward automobile started from one side of the road to. the other the trailer would not at all times be upon the same side of the road with it, but that the two at Sometime, with the connecting' rope, would obstruct the greater part of the highway. The chauffeur in the trailing automobile could not prevent it from following the other at a distance of fifty feet in a diagonal manner across the road.

While. I think the liability of said defendant was a fair question for the jury, it is apparent that he was prejudiced by the refusal of the court'to charge as requested, that if the jury “find that the sun did not set on the day in question until two minutes past seven, that under the statutes the defendants were not required to place lights upon their machines until two inmutes past eight:” I,- therefore, vote for a reversal of the . judgment and order.

Betts, J. (dissenting):

The facts as claimed by the plaintiff 'in this case can be stated in a nutshell. From the evidence given, to the jury the jury might have found: That the defendant Hawley, a farmer and live stock speculator of the town of Stillwater, after the accident to Wager’s automobile, which had severed the relations of the defendants Wager and Hawley as host and guest so that Hawley ceased to be Wager’s guest, secured the services of Mr. Peets of Colonie, a butcher, to toiy the injured automobile and take the entire party back to Cohoes; that Hawley secured a long rope and paid for it and tied or helped tie the two automobiles together, tying them in such .a way that they were some fifty or- sixty feet apart; that Hawley and his wife, with others, got in Mr. Peet’s auto and the defendant Wager remained in his, and that Hawley was on the front seat in the front auto in charge of the two autos, having secured Peet’s auto, and that while passing up Columbia street with a rope sweeping the full width of it, the autos traveling five or six miles an hour, or pretty fast, the procession was the length of both autos and fifty or sixty feet of rope;'that it was dark and neither auto was lighted, one on the right side of the street and the other on the wrong side; that no horn was sounded on either automobile; that plaintiff: came into the street on his-bicycle and traveled in the same direction as the two autos were going; saw the. head auto and escaped it; did not see the rope and was caught and thrown and injured by it; that the head car was dragging a rope along the street and dragging the rear car; that Peets offered his services to Hawley and they were accepted by Hawley, so that Hawley became the host and Wager the guest at the time of the accident and injury to plaintiff.

Under such testimony it was, in my opinion, a proper case for a jury as to whether Hawley was in command and control, of the party that propelled or dragged the invisible rope and rear auto along and across the street or not, and if he was in command and control and doing a negligent act in going along With such a procession at night without the lights of either automobile being lighted, both connected by fifty or sixty feet of invisible rope, and no horns sounded and sweeping the entire width of street, and that negligence injured plaintiff, and as plaintiff was not guilty of contributory negligence as matter of law, I think that the verdict of the jury should not be disturbed and the judgment should be affirmed.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.  