Collins v. West Jersey Express Co. ( 1908 )

The opinion of the court was delivered by

Mintukn, J.

The substantial ground of complaint in this case, as presented by the assignments of error, is that the trial judge at the close of the case directed a verdict for defendant under the following state of facts:

On the 15th of March, 1901, while a wagon was being loaded on Central avenue, in Atlantic City, another wagon carrying the United States mail, but bearing the name of the defendant upon, it, struck the former wagon, and the horse drawing the same, taking fright from the impact, dashed down the avenue up which plaintiff was coming. The plaintiff, in an attempt to avoid the runaway, broke his leg by falling over a lumber pile on the street, and instituted this suit to recover damages for his injuries. The defendant disclaimed responsibility by denying that the driver of the mail wagon was in defendant’s employ at the time of the accident. The testimony in support of the relationship of master and servant was as follows: Lister, the driver of the wagon which was struck, was asked: “How did it happen? A. Why the West Jersey express wagon struck my wagon. I told him (the driver) to hold up; don’t strike me; don’t run into me.” Newman, the driver of the mail wagon, was asked’ upon cross-examination whether upon a former trial he had not testified that at the time of the accident he was employed by the defendant, and he replied, “Not to my knowledge. If I did so it was a mistake.”' The record of that trial was admitted to show that he did so testify.

■ The plaintiff’s case, thus constructed upon a basis of in-’ ferences, was met by proof by defendant that the driver of the mail wagon had not been in the employ of the defendant during the year 1901; that he had been paid during that year by the railway company, in support of which the vouchers of the company were produced and admitted in evidence; that the West Jersey and Seashore Railway Company alone held the contract for the carriage of the mail during that year and had not let it out in whole or in part; that the defendant held no such contract and that its only connection with the business was to let out a horse and wagon to the railway company for use in that service.

Upon this uncontradicted proof the direction of a verdict for the defendant by the trial court was manifestly proper. McCormack v. Slanda/rd Oil Co., 31 Vroom 243.

The judgment, therefore, should be affirmed.

For affirmance—The Chancellor, Chief Justice, Garrison, Swayze, Reed, Trencitard, Parker, Bergen, Vooriiees, Minturn, Bogert, Vredenburgi-i, Vroom, Green, Gray, Dill, J.J. 16. ' -

For reversal—None.