Zera v. Kaplan , 260 N.Y.S. 709 ( 1932 )

Townley, J.

Plaintiff sues the defendants for damages resulting from their alleged negligence. Defendant Kaplan left his automobile in front of his place of business at about seven o’clock on the evening of May 23, 1930. On returning to the car' a short time later, he found that the front right tire was flat. He hired the defendants Greenspan and Schapiro to repair the tire. Schapiro went to the car with a large garage jack which he placed under the right front axle. The handle of the jack extended out in front of the car about two or three feet. He removed the tire and took it to his shop to make repairs. Half an hour later, he returned to find that the plaintiff as she was crossing Burnside avenue from thu north to the south side passed in front of the car to step up onto the sidewalk, tripped over the handle of the jack, which was apparently invisible in the darkness, and fell. '

The judgment is attacked by Kaplan on the ground that he employed the defendants Greenspan and Schapiro as independent contractors to do the work, left the car in their charge, and is not responsible for the negligence of Schapiro in leaving the handle of the jack sticking out so that it was a trap for passersby. Regardless of any questions of law which might arise as to the privilege in Kaplan to abandon his car in the public street to an independent contractor without any further care of the consequences, there was testimony in the record by Schapiro that Kaplan had seen him put the jack on the car and remove the tire, and had said that he would stay with the car until Schapiro returned with the the duly repaired. This testimony, to be sure, was contradicted by Kaplan, but the credibility of both Kaplan and Schapiro was a question to be determined by the trier of the facts who observed the witnesses and could best determine their credibility. (Burd v. Bleischer, 208 App. Div. 499.)

The judgment should be affirmed, with costs.

Finch, P. J., Martin and Sherman, JJ., concur; Merrell, J., dissents and votes for reversal and dismissal of the complaint.