211 A.D. 199, Calver v. Crowell

• Docket Number: .
• Citation: 211 A.D. 199
• Date: 19 December 1924
• Parties: AUGUSTA CALVER, Respondent, v. CHARLES E. CROWELL, Appellant.
• Court: New York Supreme Court Appellate Division. First Department

Page 199

211 A.D. 199

AUGUSTA CALVER, Respondent,

v.

CHARLES E. CROWELL, Appellant.

Supreme Court of New York, First Department.

December 19, 1924

Page 200

APPEAL by the defendant, Charles E. Crowell, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 4th day of December, 1923, upon the verdict of a jury for $5,000, and also from an order entered in said clerk's office on the 12th day of December, 1923, denying the defendant's motion for a new trial made upon the minutes.

COUNSEL

Bertrand L. Pettigrew, for the appellant.

Julian S. Eaton [Martin B. Faris of counsel], for the respondent.

MERRELL, J.:

The answer of the defendant herein admitted the employment of the chauffeur who drove the car at the time of the accident by the defendant, but denied that at the time defendant's chauffeur was upon the defendant's business, and denied that the car was under the defendant's control at the time plaintiff received her injuries, but it is alleged that the automobile was at the time being used by the chauffeur upon his own personal affairs without the knowledge or consent of the defendant. ^[a1]

The accident occurred on July 17, 1920, at about eight o'clock in the evening. It was still daylight. The plaintiff, a lady, fifty-one years of age, was crossing One Hundred and Twenty-fifth street from the north to the south at the easterly crosswalk of Morningside avenue when she was struck by the defendant's automobile driven by defendant's chauffeur, one Otto Miller, the plaintiff sustaining a fracture of her leg and other injuries, for which a recovery has been had against the defendant. The testimony presented a question of fact as to the negligence of

Page 201

the chauffeur in driving the car and as to plaintiff's freedom from contributory negligence. These questions were resolved by the jury in plaintiff's favor and the verdict of the jury upon the question of negligence of the defendant's chauffeur and of plaintiff's freedom from contributory negligence is conclusive upon the defendant. No claim is made that the verdict of the jury is excessive.

At the time of the accident the only occupants of the car were defendant's chauffeur, Miller, and the latter's wife, Anna Miller, both of whom were sitting on the front seat of defendant's automobile, which was a Cadillac sedan.

The defendant was a retired lawyer of the age of about seventy-three years at the time of the accident and in feeble health. He resided in the Apthorp Apartments at No. 2211 Broadway, between Seventy-eighth and Seventy-ninth streets, in the borough of Manhattan. Defendant had been confined in St. Luke's Hospital for seven weeks where he underwent an operation and had only returned to his apartment at the Apthorp about two weeks prior to the accident to plaintiff. Defendant's family consisted of his daughter, a Mrs. Emmett, and her husband, and, at the time plaintiff received her injuries, a male nurse was in defendant's apartment attending him. Defendant's car was kept at the Capitol Garage, at Broadway and One Hundred and Twenty-sixth street. It was the custom of the defendant to ride out in his car daily for a few hours, and on the afternoon of the day of the accident the defendant had been for an automobile ride in company with his nurse, one Mesler, and his daughter and son-in-law. The car had been driven by defendant's chauffeur, Miller, and after the ride the defendant and his daughter, son-in-law and nurse left the car at the Apthorp Apartments at about five o'clock in the afternoon. There was some slight discrepancy between the defendant, his nurse, his daughter and son-in-law, and the chauffeur, Miller, as to just what instructions the latter received upon leaving his employer, the defendant, at his apartment that afternoon. Miller, the chauffeur, testified that he was told at that time to be at the Capitol Garage at about ten o'clock on the following morning, a Sunday, as usual, and that it was his custom to go to the garage at that time for orders. Defendant's daughter and son-in-law both testified that the defendant told Miller to take the car back to the garage and be down at the Apthorp Apartments the next morning at ten o'clock. The nurse did not remember hearing any instructions given to the chauffeur. The defendant, who, owing to feebleness, was unable to attend...