Glavin v. Savarese , 25 N.Y. St. Rep. 1016 ( 1889 )

Clement, C. J.

The principal question argued by the counsel for the appellants in this case was whether or not the driver, Thomas Vasco, who was in possession of the horse and truck at the time plaintiff was injured, was acting on behalf of the appellants, and within the scope of his employment. The plaintiff proved that Vasco had been for 10 years employed by the defendants as a driver, and was driving at such time their truck, and had gone for a goat, which he was to take to their stable. On such testimony, as to which there was no dispute, the plaintiff made out aprima facie ease that Vasco was acting for the defendants. The counsel for defense then attempted to show by Vasco, the defendant Ferdinando Savarese, and by Daniel Savarese, a boy and the son of defendant Vincenzo Savarese, that the driver was acting for himself at the time, or -for the boy, who testified that he bought the goat and that the defendants had no knowledge of his intention to go for it. The charge at the trial is not printed in the case, and we assume that the question was submitted to the jury, whether the witnesses for defendants told the truth or not. The plaintiff was not in a position to contradict any of the testimony of the defendants’ witnesses, except by the facts that the driver was in the employ of the defendants, and was driving their truck, and was employed in taking a goat to their stable. We are of opinion that there was a conflict in the testimony. Otherwise, in any case of carelessness of the driver of a vehicle, if the employer and the driver both testify that the driver was employed in his own business at the time, a nonsuit would follow. The question of negligence of the driver, and the want of contributory negligence on the part of the plaintiff, were also properly submitted to the jury. The judgment and order denying a new trial must be affirmed, with costs.

Osborne, J., concurs.