
    Frieda Beller, an Infant, by Dora Rosenberg, Her Guardian ad Litem, Plaintiff, v. Israel Levy and Morris Garfunkel, Defendants.
    (City Court of New York, Trial Term,
    June, 1910.)
    Master and servant — Liability for injuries to third persons — Liability of master for acts of assistant employed by servant.
    Negligence — Contributory negligence — Persons in street.
    Where it appears that the plaintiff, an infant, who was knocked down and injured by a wagon while crossing the street, when she stepped off the curb looked in both directions and did not see the wagon, although her view was unobstructed, but was struck down before she had gone three feet from the curb by defendants’ wagon going at the rate of six or eight miles an hour, whose driver gave no" warning, it cannot be said as matter of law that the plaintiff was guilty of contributory negligence.
    
      Where the driver of defendants’ wagon, without their knowledge or consent, requested another of defendants’ employees to drive the wagon from the stable to their place of business so that he could go to a place of amusement, the defendants are liable for injuries resulting from the negligence of the employee who took their driver’s place.
    Motion for a new trial upon the judge’s minutes.
    Victor Deutsch, for plaintiff.
    Benj. F. Maged, for defendants.
   Finelite, J.

A jury having found a verdict in favor of the plaintiff for the sum of $750, a motion was immediately made by the defendants to set aside the verdict upon the ground that it was contrary to law, contrary to the weight of evidence and upon all the grounds set forth in section 999 of the Code of Civil Procedure.

The defendants in urging the court to set aside the verdict based their application on two grounds, to wit:

First. That the infant plaintiff did not show herself free from contributory negligence in that she did not use that degree of caution which the law required of her, and was, therefore, guilty of contributory negligence as a matter of law.

Second. That the driver of said wagon was not acting within the scope of his authority, but, on the contrary, transcended his authority, and that he was not acting on behalf of defendants at the time of the accident. These grounds will be taken up separately.

It appears from the facts herein that the infant plaintiff while going to her work, and arriving at the northeast corner of Bleecker and Lafayette streets, waited until a wagon was allowed to pass, and as soon as that wagon passed she started to cross the street. She left the curb, and .when about a distance of three feet from the curb she was struck by defendants’ wagon, which was then being driven by an employee of defendants. She also testified that when she stepped off the curb on the crosswalk she looked north and south and, her view being in ho way obstructed, she could see a great distance in front of her.

The defendants’ employee, in the wagon at the time, gave plaintiff no warning before the shaft of the wagon struck said plaintiff, knocked her down, and the right-hand wheel of the wagon passed over her leg and injured her. 'The plaintiff’s witnesses testified to the fact that the wagon was then going at a rate of about six to eight miles an hour when said plaintiff was knocked down and injured as aforesaid.

The defendants contend that they are not liable for plaintiff’s injuries for the reason that Sheehan, their regular driver, was not in control of the wagon at the time it injured the plaintiff. That their regular driver, Sheehan, on the evening preceding the accident, requested one Cohen, an assistant bookkeeper of defendants, to take the wagon from the stable and drive it to defendants’ place of business, as he, Sheehan, was going to attend a place of amusement that evening, and that Cohen agreed to oblige him by driving said wagon to defendants’ place of business, unknown to defendants. '

They further contend that Sheehan had no authority to delegate Cohen to drive the wagon for him, Sheehan, and by so doing was not acting within the scope of his employment. The defendants testified that Cohen was their assistant bookkeeper, and had no authority to drive their wagons; this is corroborated by Cohen. Sheehan testified as to the request made by him' to Cohen. I have here stated in substance the evidence produced upon the trial, the evidence as to the happening of the accident and the negligence of the defendants’ employee then acting as driver. It cannot be said as a matter of law that the plaintiff was guilty of contributory negligence when she" left the curb, and when in the crosswalk about three feet from the curb, and looking north and south on Lafayette street, and having a clear view, and seeing no wagon approaching, should expect that some warning would be given by the driver of the wagon of its approach in time to enable her to escape.

A person who looks and sees no wagon approaching for a sufficient distance to warrant an ordinarily cautious person in believing that it is safe to attempt a_ crossing has the right to proceed, relying on the assumption that a warning would he given of an approaching vehicle at an excessive rate of speed and which was not in sight when she left the sidewalk, and the absence of additional facts calling for the exercise of greater vigilance cannot be said to be negligence as a matter of law if she does not thereafter look in the direction from which danger happens to come.

It was at the most a question of fact for the jury to say whether she had exercised that care and prudence which would be required by her under the particular circumstances of the case as they existed at the time.

The contention made by the defendants in reference to the driver Sheehan not acting within the scope of his authority, but, on the contrary, transcending his authority by delegating Cohen to drive the wagon on the morning of the accident, and that said Cohen had no right or authority to drive the wagon at that time and was acting upon the request of a fellow employee who had been employed to drive the wagon, and thereby defendants were relieved from liability, is rather a novel proposition which has no. force, nor can it seriously be contended by defendants. The all-important question presents itself, was Cohen, at the time of the occurrence in question, subject to the direction and control of the defendants, and was he engaged in the business of defendants.

The general rule of law is too well settled to require the citation of authorities that a master is not liable for the negligence of a person unless that person is a servant employed in and about the particular thing in connection with which that negligence is charged, or, in other words, unless such person is acting within the scope or course of his employment and under the authority actually conferred on one that may be implied from the circumstances surrounding a given case.

If, therefore, Cohen, who was driving the wagon on the occasion in question,'was merely an employee, whose duties were to act as assistant bookkeeper and confined to act entirely in that capacity, and who was without any authority, actual or to be inferred,, to assist Sheehan in driving the horse and wagon when the accident occurred, the defendants would not be liable for his negligence. The question relates, therefore, to the authority of Cohen to act in the capacity in which he was acting when the accident happened. Cohen admitted that he drove this horse and wagon on other occasions to the place of business of the defendants, and from that testimony it was competent to imply that there was an acquiescence by or on the part of the defendants that permission was given to him to drive in the absence of Sheehan, their regular driver. The defendants would be liable, nevertheless, upon the theory, for the act of the driver Sheehan in surrendering control of the horse and wagon. There is authority for the contention that in such a case the master would be liable.

The distinction which arises between the acts of a mere volunteer and one acting under the delegated authority of a regularly appointed, servant while in the prosecution of the master’s business has been recognized and pointed out in the case of Peterson v. Hubbell, 12 App. Div. 372, wherein it was shown that Bourne, the servant, whose negligent act caused the injury, took charge of the truck and horses at his own instance and without any request of the regular driver, and without the defendant’s knowledge, and was thereby a volunteer. The court held that, if the issues in the case had turned upon the defendant’s liability for the acts of another servant in surrendering the control of- the horse and vehicle to Bourne, the master would have been liable, citing Booth v. Mister, 7 Carr. & P. 66, and Althorf v. Wolfe, 22 N. Y. 355.

In Althorf v. Wolfe, supra, where the plaintiff’s intestate was killed by being struck by ice and snow thrown from the roof of the defendant’s house, while passing along the street below, the defendant had directed one Fagan, his coachman, to clear off the snow from the roof of the house; Fagan asked one Cashan to help him; they both went upon the roof and both worked on the roof, throwing off the snow. Cashan was assisting at his own suggestion and without authority from the defendant to employ any one. It was contended the defendant was not liable, but the court held to the contrary and said it was immaterial whether the intestate was killed by ice thrown by Cashan or Fagan; that in either view it was substantially the act of Fagan. The court cited Booth v. Mister, 7 Carr. & P. 66, wherein the defendant was held liable for injuries to the plaintiff’s cabriolet, resulting from the negligent manner in which defendant’s cart was driven, although it appeared that defendant’s servant was not driving at the time, but had intrusted the reins to a stranger, who was driving with the servant, and not in the service of the defendant, the liability being placed on the ground that the negligence causing the injury was substantially the act of the defendant’s servant, who was in the cart, and. the master had put it in the power of the servant to do the injury.

In Cosgrove v. Ogden, 49 N. Y. 255, 257, the defendants were lumber dealers, and the plaintiff, a child, was injured by the falling of a pile of lumber placed in the street by the defendants’ employee who had been instructed by defendants not to pile the lumber there. The defendants were held liable for the accident, as the act was done, by the servant in the prosecution of their business, and they were not relieved from responsibility by the servant’s departure from their instructions in the manner of doing it. The court said: “ The test of the master’s responsibility for the act of his servant is not whether such act was done according to instructions of the master to the servant, but whether it was done in the prosecution of the business that the servant was employed by the master to do.” See also Kilroy v. D. & H. Co., 121 N. Y. 22; Hill v. Sheehan, 20 N. Y. Supp. 529; Williams v. Miner, 19 Misc. Rep. 695.

The defendants further contend that the damages in the sum of $750 fixed by the jury for the injuries suffered by the plaintiff are excessive and should be reduced. The plaintiff asserts that the jury having passed upon the question of fact, the court in his discretion has no right to disturb their verdict. Layman v. John Anderson & Co., 4 App. Div. 124; Von Der Bon v. Schultz, 43 N. Y. Supp. 547. See Branagan v. L. I. R. R. Co., 28 App. Div. 461; wherein the trial court held: “ If it were not that I consider the weight of precedent against it, I would certainly grant a new trial unless plaintiff stipulated to reduce the verdict.” Whereupon the Appellate Division said as follows: “ The final sentence (quoting the above) may be open to the construction that the learned justice stated that- the weight of precedent was against the right of the trial court to set aside or reduce a verdict at the Trial Term, and it is only for this reason that we take occasion to say that the residence of such a power in the court at Trial Term is inherent and beyond question and needs no citation of authority. We have had frequent occasion during the existence of the present Appellate Division of the Supreme Court to exercise the power of reducing verdicts which we considered excessive, but- this power can never be used more satisfactorily than at the Trial Term, where the court has the opportunity, not only of seeing and hearing the parties and witnesses, but judging of their behavior on' the stand. It is regretted that this power has not more frequently been resorted to in cases where it is so clear that such manifest injustice has been done that the Appellate Division has -been constrained to review and reduce the amount of verdicts which have apparently been rendered under the influence of passion, prejudice, partiality, sympathy or misconception. We have no hesitation in giving practical effect to the opinion of the learned justice at Trial Term and reducing the amount of the verdict * * *.”

In the case at bar the plaintiff’s knee was injured. S'he was in a hospital for a period of eleven days and then confined to her home for a period of about nine weeks, when she entirely recovered and was able to resume her work. She was earning when working on an average the sum of seven‘dollars per week, and it is apparent to me that the jury in awarding her the sum of $150 must have been influenced by sympathy or partiality. The amount so awarded is excessive for the injuries received and should be reduced to the sum of $350, to which reduction the plaintiff should stipulate, and on her refusal to so stipulate I order a new trial, without costs.  