220 N.Y. 431, Potts v. Pardee

Citation220 N.Y. 431
Party NameTHOMAS POTTS, Respondent, v. GEORGIE PARDEE, Appellant.
Case DateApril 17, 1917
CourtNew York Court of Appeals

Page 431

220 N.Y. 431

THOMAS POTTS, Respondent,

v.

GEORGIE PARDEE, Appellant.

New York Court of Appeal

April 17, 1917

Argued March 28, 1917.

Page 432

COUNSEL

Clarence P. Moser for appellant. The defendant was not liable for the negligence of the driver of the automobile. (Kellogg v. C. C. Foundation, 203 N.Y. 191; Ferris v. Sterling, 214 N.Y. 249; Reilly v. Connable, 214 N.Y. 586; Carroll v. Knickerbocker Ice Co., 218 N.Y. 435; Van Blaricom v. Dodgson, 220 N.Y. 111; Farthing v. Strouse, 172 A.D. 523; Heissenbuttel v. Meagher, 162 A.D. 752; Tanzer v. Read, 160 A.D. 584; Freibaum v. Brady, 143 A.D. 220; Maher v. Benedict, 123 A.D. 579.)

Frederick Wiedman for respondent. The automobile at the time of the accident was in the custody and control of the defendant's agent or servant and she is responsible for his negligence in its operation. (McCann v. Davidson, 145 A.D. 522; Norris v. Kohler, 41 N.Y. 42; Stewart v. Barueb, 103 A.D. 577; Cullen v. Thomas, 150 A.D. 475; Sharp v. Erie Co., 184 N.Y. 100; Casey v. Davis & F. M. Co., 209 N.Y. 25; Becker v. Koch, 104 N.Y. 394; Manhattan Co. v. Phillips, 109 N.Y. 383; Cross v. Cross, 108 N.Y. 628; S. & R. on Neg. [ 4th ed.] § 160; Tanzer v. Read, 160 A.D. 584; Rush v. Dilks, 43 Hun, 282.)

MCLAUGHLIN, J.

The plaintiff, on the 23d of June, 1910, while lawfully using one of the public streets of the city of Rochester, was struck by an automobile and very seriously injured. He brought this action to recover the damages sustained on the ground that the same were caused by the alleged negligence of the defendant. The

Page 433

answer, while admitting that the plaintiff was injured by an automobile at the time and place stated, put in issue the other material allegations of the complaint. At the trial the plaintiff had a verdict for a substantial amount, upon which judgment was entered, from which defendant appealed. The Appellate Division, by divided court, affirmed the judgment, and the present appeal is taken therefrom.

The facts are not complicated, and the only question which I deem it necessary to consider is whether there was any evidence which justified a finding that the defendant was in any way responsible for the plaintiff's injuries. The defendant, her husband, son and a chauffeur by the name of Fraser, shortly prior to the accident, started on a trip to visit friends, and in passing through the city of Rochester the accident occurred. The automobile was owned by the defendant and this fact was prima facie evidence of her responsibility for the manner in which it was driven. (Ferris v. Sterling, 214 N.Y. 249; Kellogg v. Church Charity Foundation of L. I., 203 N.Y. 191.) The presumption growing out of a prima facie case, however, remains only so long as there is no substantial evidence to the contrary. When that is offered the presumption disappears, and unless met by further proof there is nothing to justify a finding based solely upon it. (Matter of Carroll v. Knickerbocker Ice Co., 218 N.Y. 435.) Here the presumption arising from the fact of ownership was entirely destroyed by the other evidence. The plaintiff called as a witness Fraser, who was driving the car at the time the accident occurred, and thereby certified him to be credible. (Maher v. Benedict, 123 A.D. 579.) Fraser testified that he was not in the employ of the defendant, but was at the time of the accident, and for nearly twenty years prior thereto had been in the employ of defendant's husband; that he was hired by the husband, was paid by him, and received his orders from him--including those with reference to the trip

Page 434

which was then being taken. His testimony was not in any respect suspicious and was fully corroborated by the testimony of the defendant. The jury was not at liberty to disregard this testimony and it established that Fraser at the time the accident occurred was the servant of defendant's husband.

The husband died about two years after the accident, and prior to the trial. Fraser, at the time of the trial, was not in defendant's employ, though she had retained him for a few months after...

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123 practice notes
  • 291 P. 1060 (Idaho 1930), 5573, Stanger v. Hunter
    • United States
    • Idaho Supreme Court of Idaho
    • September 25, 1930
    ...Co., 211 Mo.App. 256, 243 S.W. 406; Baker v. Maseeh, 20 Ariz. 201, 179 P. 53; Knust v. Bullock, 59 Wash. 141, 109 P. 329; Potts v. Pardee, 220 N.Y. 431, 8 A. L. R. 735, 116 N.E. 78; McCann v. Davison, 145 A.D. 522, 130 N.Y.S. 473.) In the cases cited by respondent under this point the negli......
  • 241 S.W. 979 (Mo.App. 1922), Rockwell v. Standard Stamping Company, a Corp.
    • United States
    • Missouri Court of Appeals of Missouri
    • May 2, 1922
    ...doctrine of the Fleishman case. [See McCann v. Davison, 145 A.D. 522, 130 N.Y.S. 473; Hartnet v. Hudson, 165 N.Y.S. 1034; Potts v. Pardee, 220 N.Y. 431, 116 N.E. 78; Bosco v. Boston Store, 195 Ill.App. 133; Baker v. Maseeh, 20 Ariz. 201, 179 P. 53; Vonderhorst Brewing Company v. Amrhine, 98......
  • 118 S.E.2d 779 (N.C. 1961), 167, Taylor v. Parks
    • United States
    • North Carolina Supreme Court of North Carolina
    • March 22, 1961
    ...State Automobile Ass'n, 190 Cal. 246, 212 P. 27; Rawlings v. Clay Motor Co., 287 Ky. 604, 154 S.W.2d 711. See also, Potts v. Pardee, 220 N.Y. 431, 116 N.E. 78, 8 A.L.R. 785; Potchasky v. Marshall, 211 A.D. 236, 207 N.Y.S. 562. In 5 A.L.R.2d 196--249 appears a most helpful Annotation entitle......
  • 259 N.W. 757 (N.D. 1934), 6300, Posey v. Krogh
    • United States
    • North Dakota Supreme Court of North Dakota
    • December 20, 1934
    ...63 Mont. 488, 208 P. 924; Doran v. Thomsen, 74 N.J.L. 445, 66 A. 897; Linville v. Nissen, 162 N.C. 95, 77 S.E. 1096; Potts v. Pardee, 220 N.Y. 431, 116 N.E. 78, 8 A.L.R. 785, 17 N.C.C.A. 427; Ouelette v. Superior Motor & Mach. Works, 157 Wis. 531, 147 N.W. 1014, 52 L.R.A.(N.S.) 299, 6 N......
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123 cases
  • 291 P. 1060 (Idaho 1930), 5573, Stanger v. Hunter
    • United States
    • Idaho Supreme Court of Idaho
    • September 25, 1930
    ...Co., 211 Mo.App. 256, 243 S.W. 406; Baker v. Maseeh, 20 Ariz. 201, 179 P. 53; Knust v. Bullock, 59 Wash. 141, 109 P. 329; Potts v. Pardee, 220 N.Y. 431, 8 A. L. R. 735, 116 N.E. 78; McCann v. Davison, 145 A.D. 522, 130 N.Y.S. 473.) In the cases cited by respondent under this point the negli......
  • 241 S.W. 979 (Mo.App. 1922), Rockwell v. Standard Stamping Company, a Corp.
    • United States
    • Missouri Court of Appeals of Missouri
    • May 2, 1922
    ...doctrine of the Fleishman case. [See McCann v. Davison, 145 A.D. 522, 130 N.Y.S. 473; Hartnet v. Hudson, 165 N.Y.S. 1034; Potts v. Pardee, 220 N.Y. 431, 116 N.E. 78; Bosco v. Boston Store, 195 Ill.App. 133; Baker v. Maseeh, 20 Ariz. 201, 179 P. 53; Vonderhorst Brewing Company v. Amrhine, 98......
  • 118 S.E.2d 779 (N.C. 1961), 167, Taylor v. Parks
    • United States
    • North Carolina Supreme Court of North Carolina
    • March 22, 1961
    ...State Automobile Ass'n, 190 Cal. 246, 212 P. 27; Rawlings v. Clay Motor Co., 287 Ky. 604, 154 S.W.2d 711. See also, Potts v. Pardee, 220 N.Y. 431, 116 N.E. 78, 8 A.L.R. 785; Potchasky v. Marshall, 211 A.D. 236, 207 N.Y.S. 562. In 5 A.L.R.2d 196--249 appears a most helpful Annotation entitle......
  • 259 N.W. 757 (N.D. 1934), 6300, Posey v. Krogh
    • United States
    • North Dakota Supreme Court of North Dakota
    • December 20, 1934
    ...63 Mont. 488, 208 P. 924; Doran v. Thomsen, 74 N.J.L. 445, 66 A. 897; Linville v. Nissen, 162 N.C. 95, 77 S.E. 1096; Potts v. Pardee, 220 N.Y. 431, 116 N.E. 78, 8 A.L.R. 785, 17 N.C.C.A. 427; Ouelette v. Superior Motor & Mach. Works, 157 Wis. 531, 147 N.W. 1014, 52 L.R.A.(N.S.) 299, 6 N......
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