De Carvalho v. . Brunner ( 1918 )

The plaintiffs in this action seek to recover damages for the death of Luiz da Cunha Carvalho who was struck and killed by a truck owned by the defendant Brunner. The accident happened at about noon April 25, 1911, on Water street near the corner of Wall street in the city of New York.

The truck owned by Burnner was a one-horse truck and was going north in Water street. At the same time a two-horse truck owned by the defendants E.J. Johnston Co. was also going north in Water street. When about 175 feet south of Wall street the drivers of the two trucks began to race. The defendants' two-horse truck was on the right or east side of the street near the curb, while the one-horse truck was to the left near the middle of the street. The trucks were going, as one of the witnesses said, at about the same rate of speed as an ambulance or fire engine "responding to an emergency call." Water street near Wall street is about 20 feet wide between curb lines and is a busy street. An ordinance of the city at the time in force prescribed that no person in charge of any vehicle on a city street shall drive at a greater speed than is reasonable, having regard to the traffic and use of the highways or so as to endanger the life or limb of any person.

As they proceeded the one-horse truck gained on the two-horse truck and passed over in front of it at Wall street and then went north near the easterly curb. The two-horse truck drew off to the left and passed north near the middle of the street. At that time the hubs of the trucks were about a foot apart.

When they were about 15 feet north of Wall street the one-horse truck struck the plaintiffs' testator, who was crossing the street, and killed him.

At the Trial Term a verdict of $10,000 was rendered against all the defendants. The defendants Johnston Co. appealed to the Appellate Division, but the defendant Brunner did not appeal. The Appellate Division reversed the judgment and dismissed the complaint as against the defendants Johnston Co. The appeal here is by the plaintiffs from so much of the judgment as was reversed at the Appellate Division.

The Appellate Division said that there was no evidence to show that the truck owned by Johnston Co. in any way contributed to the accident.

In Cooley on Torts (Vol. 1 [3d ed.], p. 249) the author, speaking of the liability of joint wrongdoers, said: "Where two or more are unlawfully or negligently racing horses on a street and one injures a traveler, they are jointly and severally liable."

It was for the jury to say, from all the circumstances in the case, whether the fast driving of the defendants' servants was of such character as to endanger the safety of foot passengers in the street, and whether it was an act done in concert, and if the jury found in the affirmative, it was authorized to hold all the defendants liable. (Hanrahan v. Cochran, 12 App. Div. 91;Burnham v. Butler, 31 N.Y. 480; Vosburgh v. Moak, 1 Cush. 453.) In that view of the case there certainly was some evidence to sustain the judgment of the Trial Term, and the complaint should not have been dismissed.

I recommend that the judgment appealed from be reversed, and a new trial granted, with costs to abide the event.

HISCOCK, Ch. J., CHASE, COLLIN, HOGAN and CRANE, JJ., concur; McLAUGHLIN, J., not sitting.

Judgment reversed, etc.