102 F.2d 467 (2nd Cir. 1939), 135, Napier v. Bossard

Docket Nº:135.
Citation:102 F.2d 467
Case Date:March 06, 1939
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

Page 467

102 F.2d 467 (2nd Cir. 1939)




No. 135.

United States Court of Appeals, Second Circuit.

March 6, 1939

Michael F. Walsh, U.S. Atty., of Brooklyn, N.Y. (Vine H. Smith and William S. Perlman, Asst. U.S. Attys., both of Brooklyn, N.Y., of counsel), for appellant.

Louis Rothbard, of Brooklyn, N.Y. (Francis J. Hughes, of New York City, of counsel), for appellee.

Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.

L. HAND, Circuit Judge.

This is an action to recover for the death of the plaintiff's wife who, while walking on the side-walk, was struck by a taxicab driven by one, Ragone. Her husband sued both Ragone and the appellant, Bossard, and the jury found both liable: Bossard alone appealed. Ragone's cab collided with a Post-Office truck, driven by Bossard, approaching from Ragone's right along another street; the rear of the cab was thrown off to the left, and slewed over onto the side-walk, where it struck the deceased. The action was brought on the theory that both drivers were at fault, and the chief question upon the appeal is whether there was enough evidence to hold Bossard. The cause was brought in the state court, and removed under Sec. 76 of Title 28 U.S.Code, 28 U.S.C.A. § 76, because Bossard was driving the trust 'under or by authority of' the postmaster of Brooklyn who was an 'officer * * * acting by authority of' a 'revenue law'. United States v. Bromley, 12 How. 88, 96, 97, 13 L.Ed. 905; Ward v. Congress Construction Co., 7 Cir., 99 F. 598; Warner v. Fowler, Fed. Cas. 17,182; West v. Prudential Ins. Co. D.C.W.D. Mo., 34 F.2d 449. Before removal the plaintiff took the deposition of Ragone, as a party defendant, under Sec. 288 of the N.Y. Civil Practice Act.

The accident happened at about 5:30 P.M. on January 14th, and it was dark. East 17th Street in the Borough of Brooklyn runs north and south: Avenue J crosses it at right angles. Omitting Ragone's disposition, the testimony was as follows. Ragone, with four fares in his car, was coming north on 17th Street at about 35 miles an hour: Bossard was driving his truck west on Avenue J towards 17th Street, at about eighteen miles an hour. When about 50 feet from the east curb of 17th Street he looked to his left, but did not see the cab; he could then see about 125 feet down 17th Street. He did not look

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again till he got to the east curb of 17th Street...

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