
    Francis Glavin, Resp’t, v. Vincenzo Savarese et al., App’lts.
    
      (City Court of Brooklyn, General Term,
    
    
      Filed May 27, 1889.)
    
    1. Negligence—Master and servant—Liability.
    In an action for an injury resulting from being struck by a horse attached to a truck, there was a conflict in the testimony as to whether the driver was an employee of defendant or employed on his own business at the time, or on business of defendant’s. Meld-, that the question was-properly submitted to the jury.
    2. Same—When nonsuit proper.
    In an action against a master for injuries resulting from the carelessness of a servant, a driver of a vehicle, if the master and driver both testify that the latter was. employed in his own business, at the time, a nonsuit, should follow.
    
      Patrick Ready, for resp’t; Tighe & Molloy, for app’lts.
   Clement, Ch. J.

The principal question argued by the counsel for the appellants, in this case, was whether or not the driver, Thomas Vasco, who was in possession of the horse and track at the time plaintiff was injured, was acting on behalf of the appellants and within the scope of his employment.

The plaintiff proved that Vasco had been, for ten years, employed by the defendants as a driver, and was driving, at such time, their truck, and had gone for a goat which he was to take to their stable.

On such testimony, as to which there was no dispute, the plaintiff made out a prima facie case that Vasco was acting for the defendants.

The counsel for defense then attempted to show by Vasco, the defendant Ferdinando Savarese, and by Daniel Savarese, a boy, and the son of defendant, Vincenzo Savarese, that the driver was acting for himself at the time, or for the boy, who testified that he bought the goat, and that the defendants had no knowledge of his intention to go for it. The charge, at the trial, is not printed in the case, and we assume that the question was submitted to the jury, whether the witnesses for defendants told the truth or not. The plaintiff was not in a position to contradict any of the testimony of the defendants’ witnesses, except by the facts that the driver was in the employ of the defendants, and was driving their track, and was employed in taking a goat to their stable.

We are of opinion that there was a conflict in the testimony. Otherwise, in any case of carelessness of the driver of a vehicle, if the employer and the driver both testify that the driver was employed in his own business at the time, a nonsuit would follow.

The questions of negligence of the driver, and the want of contributory negligence on the part of the plaintiff, were also properly submitted to the jury.

The judgment and order denying a new trial must be affirmed, with costs.

Osborne, J., concurs.  