
    Annie Fisick, Appellant, v. Herman Lorber, Respondent.
    (Supreme Court, Appellate Term, First Department,
    June, 1916.)
    Automobiles — master and servant — negligence — evidence — negligence of chauffeur.
    That a chauffeur by permission of his employer stops at his own home for supper on the way to the' garage with the car does not remove him even temporarily from his employment.
    Where the chauffeur while taking the car back to the garage in Williamsburgh went by way of Broome street rather than by Delancey street, the distance between the two streets covering but a short city "block, 'his act constituted a negligible deviation from the direct route but was without effect to suspend the course of his service to his master.
    Where, in an action against a physician for personal injuries caused by his automobile driven by his chauffeur, there was no evidence that he, after he had by permission of his master taken kis supper at kis own home, was engaged in other than his master’s service in returning the automobile to the garage accompanied by his wife and mother-in-law, a charge to the jury, that if instead of turning to go toward Delancey street he started south toward Broome street the jury might infer that he was not proceeding by the nearest, way to the garage for the purpose of storing the car and that if he was taking his wife and mother-in-law either for a drive or to visit some persons or to entertain them in any way he was not then employed in the business of defendant and defendant was not answerable for his negligence, is erroneous.
    Appeal by plaintiff from a judgment of the City Court of the city of New York, in favor of defendant, entered upon the verdict of a jury.
    Morris & Samuel Meyers (Samuel Meyers and George Wolf, of counsel), for appellant.
    William Butler (R. Waldo MacKewan, of counsel), for respondent.
   Bijur, J.

Plaintiff claims that while she was sitting on the sidewalk in front of No. 33 Cannon street about ten o’clock of a summer evening, defendant’s automobile, in charge of his chauffeur, Soble, was so negligently operated that the rear end of it came up on the sidewalk and injured her. Defendant is a doctor living at 330 East Fourth street. Soble had finished his work for the day jand was to take the automobile to the garage in Williainsburg over the so-called Delancey street or Williamsburg bridge. He went to his own home at No. 29 Cannon street to get his supper. No. 29 Cannon street is about halfway between Delancey street and Broome street, which is south of Delancey.

Plaintiff’s contention, in substance, is that after Soble had finished his supper, he started for the garage taking his wife and mother-in-law along for the ride. The machine was then standing in front of his house on the west side of Cannon street facing Broome, with its back toward Delancey. For some reason Soble backed the machine and struck the plaintiff with the rear wheels. It is a question whether then Soble went off toward Broome or Delancey streets.

Defendant’s claim is that plaintiff was sitting in the gutter on a chair.

The question whether Soble had his master’s permission to stop at his own home for dinner was litigated at length. Although mere permission would not be determinative (see Cunningham v. Castle, 127 App. Div. 580, 586, 587) nevertheless if he had such permission it is evident that his stop for the' meal while engaged in his master’s service in returning the automobile to the garage did not remove him even temporarily from that service.

In this respect the learned judge below charged the jury incorrectly when he said: ‘ ‘ If the owner told him 1 You can take my automobile and go to your home and get your dinner ’ and he proceeded to do so and he hurt somebody while doing so, he would not be engaged at that time in the business of the defendant.” This error in the charge, however, except in so far as it may have conveyed to the jury a generally inaccurate impression as to the law of the case, was probably not material because whether at the actual time when Soble was taking his dinner he was engaged in his master’s service or not, it is perfectly clear that after he had-finished the meal if he started for the garage he had completely resumed his master’s duties. Geraty v. National Ice Co., 16 App. Div. 174; Jones v. Weigand, 134 id. 644.

Bearing in mind the fact that the distance between Delancey and Broome streets covers but a short city block, it is perfectly apparent that if Soble was on his way to the garage in Williamsburg the mere fact that he went by way of Broome street, rather than by Delancey street, constituted a negligible deviation from the direct route. It had no effect to suspend the course of his service to his master. Quinn v. Power, 87 N. Y. 535; Jones v. Weigand, supra; Geraty v. National Ice Co., supra. The court apparently recognized the fact that the problem for the jury to solve began when Soble resumed the conduct of the automobile after his meal. He said to the jury; 1 ‘ The question will be presented whether or not, after he had finished his meal at his home in Cannon street, he was proceeding to the garage directly for the purpose of storing the car for the night, or was he about to take his family to visit somebody, or for a ride. If he was proceeding directly to the garage, then he was employed in the business of the defendant, but if he was taking his wife and mother-in-law to visit somebody, or for a ride, then he was engaged in his own business, and not the business of the defendant, and there can be no liability fastened upon the defendant by reason of the fact that the chauffeur was using the defendant’s car for his own entertainment or purposes.”

Later he said: “We do know that had he gone to the garage directly after being discharged for the night at the defendant’s place of business, it would have been the nearest way to go over the Delancey street bridge, because the garage was near the Brooklyn end of that bridge. Having passed south of Delancey street to go to his home, if he desired to go to that garage by the nearest route presenting itself, he would naturally turn his car north again, to go to Delancey street and cross the bridge.”

And then added: “ But if instead of turning toward Delancey street * * * he started south toward Broome street, you may very well infer from that fact that he was not proceeding in the nearest and direct way to his garage for the purpose of storing the car for the night, and if he was taking his mother-in-law and his wife south, either for a drive or to visit some persons or to entertain them in any way, he was not then employed in the business of the defendant, and the defendant is not answerable for his negligence.”

Plaintiff’s counsel excepted to this portion of the charge, and particularly to the right accorded to the jury to draw ‘1 a certain inference from the way the automobile was driven off or the direction in which the automobile was driven off.” This exception presents error for which the judgment must be reversed.

There was no direct evidence to contradict the chauffeur’s statement, when testifying on behalf of defendant that he was proceeding to the garage, and that his wife and mother-in-law accompanied him only because they were going to Williamsburg and he “ wrould drop them off after he took them across the bridge,” that that was what he did. There was, therefore, no evidence at all that after he had taken his meal he was engaged in other than his master’s service returning the automobile to the garage. As I have pointed out -above, the mere fact that he went by way of Broome street rather than Delancey street for a short distance would amount merely to a deviation from the direct route.

I cannot find in this f¿ct even the proverbial ‘ ‘ scintilla ” of evidence that he was entering upon a joyride or any purpose of his own, but even such a scintilla furnishes no adequate foundation upon which to base a finding. Matter of Case, 214 N. Y. 199, 203, 204 and cases there cited.

The record as it comes to us presented no issue as to the defendant’s responsibility, it being uncontradicted by direct testimony or circumstance that at the time of the accident Soble was engaged in his master’s service. The only question was whether the accident was the result of Soble’s negligence.

In connection with this subject, appellant claims that the court below committed further error by charging, in substance, that if the plaintiff was not seated on the sidewalk that was the end of the case. Appellant would have us infer from this that the court below had charged that appellant’s sitting in the gutter was contributory negligence as matter of law. It is quite plain to me, however, from a reading of the context, that what the court did charge was that if plaintiff was not sitting on the sidewalk then she could not recover, because then her whole theory of the case failed. This had no reference to the question of contributory negligence.

Guy and Philbin, JJ., concur.

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