
    Frank W. Fechtman, Respondent, v. George H. Huber, Appellant.
    Judgment and order affirmed, with costs
   Barrett, J.:

There was sufficient evidence to warrant the submission to the jury of the two questions which were presented in this case. These questions were, first, whether the “shedman,” so called, was the defendant’s servant; and, if so, second, whether this servant was guilty of negligence. The jury have found for the plaintiff upon both issues. There was no question of contributory negligence. The learned judge so stated in his charge, without exception, and there was no request to submit any possible question on that head to the jury. There was, in fact, no such question in the case. The defendant complains that the declarations of one Fischer to the effect that the negligent shedman was in the defendant’s employ were incompetent. But this testimony was not objected to. On the contrary, it was treated as competent, and Fischer himself was called by the defendant to contradict it. The reason why it was not objected to is obvious. Fischer was the defendant’s roadhouse manager and alter ego. He substan- ' tially so testified. The defendant himself admitted that Fischer was his general representative. There is nothing, therefore, in the point, now for the first time made, that Fischer’s declarations were incompetent. The evidence of his admission, testified to by three witnesses, is sufficient basis for the verdict. There was also the testimony of the witness Brown that the man in question was employed by the defendant, and the defendant himself, although he said the man was not in his employ, admitted that “it was the duty of this man referred to to take care of the horses, that is, to put them in the shed and bring them out again.” He was thus, according to the defendant’s own account, performing services for him at the time of the accident. The evidence on this head is ample to support the verdict. The evidence of the shedman’s negligence is given by the plaintiff. There was another vehicle in front of the plaintiff’s horse and wagon. This vehicle was backed down so that its wheels struck the plaintiff’s horse. The latter was thereby startled and ‘became unruly. The plaintiff testifies that the shedman “when he saw the other horse back, stood perfectly still, made no effort whatever to get out of the way.” It was to be expected that the horse would be frightened if the wheels should strike him. And the jury had a right to find that the shed-man was negligent in not attempting while the backing was going on to remove the plaintiff’s horse out of harm’s way. The negligence was in making no effort to avert the collision. And it was not cured by the shedman’s subsequent effort to prevent the horse’s escape. This evidence is absolutely uncontradicted. And it is reinforced by the defendant’s failure to call the shedman as a witness, or to explain in any way why this was not done. Indeed, the case was tried, mainly upon the question first considered, and the question of the shedman’s negligence was not specifically raised. After moving to dismiss upon the first ground the learned counsel for the defendant did add: “ There is no proof of our negligence.” But this amounted to no more than a continuous disavowal of the shedman’s agency. It was the same as saying—we move to dismiss upon the ground that there is no proof that the shedman was in our employ and consequently there is no proof of our negligence. The judgment and order denying motion for a new trial should be affirmed, with costs. Van Brunt, P. J., Williams, Patterson and O’Brien, JJ., concurred.  