
    Albert Scheib, an Infant, by Joseph Scheib, His Guardian ad Litem, Respondent, v. New York City Railway Company, Appellant.
    Second Department,
    November 16, 1906.
    Negligence — coemployee of driver of wagon injured by'collision with street car—when concurrent negligence of driver immaterial.
    A person riding on a wagon, who conducts himself with care, can recover for an injury received in a collision with a surface car, caused by the negligence of the motorman, although the driver of the wagon was concurrently negligent; and the fact that the plaintiff was engaged in a common employment with the-driver is immaterial where there is ho proof that he had any 'control over the wagon or attempted to influence the driver.
    Appeal by the defendant, the Hew York City Railway Company, from a judgment, of the Supreme Court'in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 7th day of December, Í905,'upon the verdict of a jury for $10,000, and also' from an order entered in said clerk’s office on the: 6tli -day of January, 1906, denying the defendant’s motion for a, new trial made upon the minutes. . . .
    
      
      Charles F. Brown [Bayard H. Ames and James L. Quackenbush with him on the brief], for the appellant.
    
      Thomas J. O'Neill [Joseph A. Shay with him on the brief], for the respondent.
   Woodward, J.:

The plaintiff in this action was injured in a collision between an electric car of the defendant and a wagon in which the plaintiff was riding, but which was driven by another person. The principal question presented by this appeal- is whether the learned trial court erred in charging the jury, as requested in behalf of the plaintiff, “ that if the plaintiff conducted himself with due care, and the accident was caused by the negligence - of the defendant’s motorman, the defendant would be liable even though the driver of the wagon was also concurrently negligent.” It is contended on behalf of the appellant that inasmuch as the testimony showed that the plaintiff and the driver of the wagon were engaged in a common employment, this instruction was erroneous as in conflict with the law as laid down in the case of Donnelly v. Brooklyn City R. R. Co. (109 N. Y. 16).

We are of the opinion, however, that there is a distinction between the Donnelly case and the case at bar. In the Donnelly case it distinctly appeared from the evidence that both the plaintiff •and the driver were engaged in the management and directing the control of the wagon. Here there is no proof whatever that the plaintiff did anything or attempted to do anything to influence the conduct of the driver.

This distinction has heretofore been pointed out by this court in Bailey v. Jourdan (18 App. Div. 387); and in McCormack v. Nassau Electric R. R. Co. (Id. 333) this court also laid down the rule which it supposed to be applicable to accidents of the same character as that involved in the present case, a rule which still seems to us readily reconcilable with the opinion of Geay, J., in the Donnelly case when the facts which were under consideration in that case are clearly understood.

There is no other question which calls fo.r discussion, and the judgment and order should be affirmed.

Present—Hirschberg, P. J., Woodward, Rich and Miller, JJ.

Judgment and order unanimously affirmed, with costs.  