Opinion
June 22, 1917.
Edward E. Hoenig [ William M. Sullivan with him on the brief], for the appellant.
Mark Nave, for the respondents.
The testimony of Irene Klein, who followed deceased out of the street car, described how, with other alighting passengers, they passed behind the car and, when a foot from the car track, looked westerly towards the ferry, but though the rear fender, as tied up, interfered somewhat with their view, they could still see to the corner, a distance of eighty feet, when they saw no vehicle. Whether the street car was still stopped discharging passengers as the auto truck came up is left in some doubt. The terms of the automobile ordinance forbidding a vehicle overtaking or meeting a street car which has stopped to receive or discharge a passenger or passengers, to "pass or approach within eight (8) feet of said car so long as the same is so stopped and remains standing for the purpose aforesaid," bear on the care that persons like deceased were called on to use. The fact that the auto truck came on without stopping, and, with no warning horn or signal, struck and killed deceased, then on the middle of the east-bound track, presented an issue of contributory negligence for the jury.
It is, however, urged that plaintiff failed to prove that the driver of the automobile truck was engaged in the service of either defendant. Inasmuch as this automobile truck bore the name of the Manhattan Steam Bakery, Inc., and was its property, being at the time laden with its goods, that defendant could not insist as a matter of law that the formal leases for a week to August Hueg, and other contracts, relieved such defendant from liability. That, too, became a question for a jury. ( Baldwin v. Abraham, 57 App. Div. 67, 73; 171 N.Y. 677.)
The order setting aside the verdict and the judgment for defendants are, therefore, reversed, and a new trial granted, costs to abide the event.
JENKS, P.J., STAPLETON, RICH and BLACKMAR, JJ., concurred.
Order setting aside verdict and judgment for defendants reversed, and new trial granted, costs to abide the event.