299 N.Y. 336, Elfeld v. Burkham Auto Renting Co., Inc.

Citation299 N.Y. 336
Party NameElfeld v. Burkham Auto Renting Co., Inc.
Case DateJuly 19, 1949
CourtNew York Court of Appeals

Page 336

299 N.Y. 336

HENRY ELFELD, as Administrator of the Estate of MATTHEW ELFELD, Deceased, Appellant,

v.

BURKHAM AUTO RENTING CO., INC., Respondent, et al., Defendants.

New York Court of Appeal

July 19, 1949

Argued April 13, 1949.

Page 337

[Copyrighted Material Omitted]

Page 338

COUNSEL

Martin M. Kolbrener, Morton Feder and Joseph W. Winston for appellant. I. The jury's findings that the truck was dangerously defective, that its hazardous condition caused the accident, and that deceased was free from contributory negligence, were amply supported by the evidence. (Lee v. City Brewing Corp., 279 N.Y. 380.) II. Defendant auto renting company is liable at common law. (Ferris v. Sterling, 214 N.Y. 249; Crawford v. Nilan, 264 A.D. 46; Norris v. Kohler, 41 N.Y. 42; Elliott v. Hall, 15 Q. B. D. 315; MacPherson v. Buick Motor Co., 217 N.Y. 382; Sobel v. O'Connor, 293 N.Y. 924; Lee v. City Brewing Corp., 279 N.Y. 380; Christie v. Vineburg, Inc., 259 A.D. 342.) III. Defendant auto renting company is liable under section 59 of the Vehicle and Traffic Law. (Arcara v. Moresse, 258 N.Y. 211; Dittman v. Davis, 274 A.D. 836; Eckert v. Farrington Co., 262 A.D. 9, 287 N.Y. 714.) IV. The fact that deceased drove the car does not exclude him from the benefits of the statute if the legal user be found negligent. (Cohen v. Neustadter, 247 N.Y. 207; Jackson v. Brown & Kleinhenz, 273 N.Y. 365; Reese v. Reamore, 292 N.Y. 292.)

Joseph F. Hanley and John W. Trapp for respondent. I. No liability can be cast upon the auto renting company under the common law or under the provisions of section 59 of the Vehicle and Traffic Law and the complaint was properly dismissed. (Arcara v. Moresse, 258 N.Y. 211; Good Health Dairy Products Corp. v. Emery, 275 N.Y. 14; Blake v. Salmonson, 188 Misc. 97; Woollcott v. Shubert, 217 N.Y. 212; Dean v. Metropolitan Elevated Ry. Co., 119 N.Y. 540; Gochee v. Wagner, 257 N.Y. 344; Cherwien v. Geiter, 272 N.Y. 165; Mills v. Gabriel, 259 A.D. 60, 284 N.Y. 755.) II. Section 59 of the Vehicle and Traffic Law imposes liability upon the owner of a motor vehicle for negligence in the 'operation' of the vehicle upon the highway, not for negligence in the 'maintenance' of the

Page 339

vehicle. (Psota v. Long Island R. R. Co., 246 N.Y. 388; Elenkrieg v. Siebrecht, 238 N.Y. 254; Berkey v. Third Ave. Ry. Co., 244 N.Y. 84.)III. The complaint was properly dismissed for the skidding was the proximate cause created by the 'negligent operation' of the driver on a wet road. (Anderson v. Schorn, 189 A.D. 495, 231 N.Y. 590; Digelormo v. Weil, 260 N.Y. 192; Lopez v. Campbell, 163 N.Y. 340; Ruppert v. Brooklyn Heights R. R. Co., 154 N.Y. 90.)

LEWIS, J.

This is a negligence action in which a judgment entered at Trial Term upon a jury's verdict in plaintiff's favor has been reversed at the Appellate Division on the law and the facts and the complaint dismissed on the law. The case reaches us upon an appeal by the plaintiff taken as of right from a judgment entered upon the order of the Appellate Division.

The plaintiff, as administrator of the estate of his son Matthew Elfeld, deceased, sues to recover damages for the death of the decedent who was killed by the overturning of a baker's delivery truck he was driving. Plaintiff claims the accident was due to the fact that the truck had a defect in its steering equipment and that its tires were worn so smooth as to constitute foreseeable danger from its operation.

Our inquiry goes -- by a way made devious by subsidiary problems -- to the ultimate question whether in the record at hand there is evidence which presents a question of fact from which a jury might find the defendant Burkham Auto Renting Co., Inc. -- hereinafter referred to as Burkham -- legally liable for damages resulting from the death of plaintiff's intestate.

For ten days prior to his death, the decedent had been employed as a driver-salesman for Pechter Baking Company -- to which reference will be made as Pechter -- and was assigned by his employer to truck No. 23 which was garaged in the Pechter plant on Cherry Street, New York City. During the early days of his employment with the Pechter company another salesman drove the decedent around a delivery route and explained his duties as a new salesman. For two or three days before the accident the decedent drove the truck himself but was accompanied by one of the Pechter supervisors who observed his qualifications as a salesman and driver. On the day of the accident the truck for the first time was driven by the decedent alone.

Page 340

The accident occurred at about 11 o'clock in the morning of June 26, 1945, while the decedent was driving westerly along Metropolitan Avenue in New York City. As the truck passed the florist shop of the witness Drews, he observed its progress and testified at the trial that it appeared to be traveling about twenty miles an hour and seemed to be 'out of control.' He saw the truck start to skid, hit the right curb, and then skid to the left until he lost sight of it. During the time the truck was within Drews' vision he observed that the driver 'was trying to control the steering wheel', 'trying to get control of his wheel, going right and left, like that' (demonstrating). After the truck had passed from Drews' sight, he heard a crash and, upon investigation, found that the truck had overturned pinning the decedent beneath it. At the time of the accident the road was still wet from a rainfall earlier that morning.

Police officers soon reached the scene of the accident where the truck was examined by Detective Maurer and Lieutenant Andrews -- members of the Queens...

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25 practice notes
  • 20 Misc.3d 1109(A), 2008-51297, Reyes v. Chee Trucking Inc.
    • United States
    • June 27, 2008
    ...of the accident alleged. Argentina v. Emery World Wide Delivery Corp., 93 N.Y.2d 554 (1999); Elfeld v. Burkham Auto Renting Co., Inc., 299 N.Y. 336 (1949); Eckert v. the G.B. Farrington Company, Inc., 262 A.D. 9 (4th Dept. 1941), Aff'd, 287 N.Y. 714 (1942); Aranzullo v. Collins Packing Comp......
  • 309 N.Y. 497, Swensson v. New York, Albany Despatch Co., Inc.
    • United States
    • New York New York Court of Appeals
    • January 12, 1956
    ...500 Oliver v. Bereano, 267 A.D. 747, 293 N.Y. 931; Van Dorn v. Jackson Auto Sales, 283 N.Y. 628; Elfeld v. Burkham Auto Renting Corp., 299 N.Y. 336.)III. Defendant's counsel took no exception to the charge so they must concede that the charge is the law of the case. (Saulsbury v. Braun, 223......
  • 93 N.Y.2d 554, Argentina v. Emery World Wide
    • United States
    • New York New York Court of Appeals
    • July 1, 1999
    ...unloading. Notably, the statute has not been limited to situations where the vehicle is in motion (see, Elfeld v Burkham Auto Renting Co., 299 N.Y. 336, 345; Eckert v Farrington Co., 262 App Div 9, affd 287 N.Y. 714; see also, Guadagno v H. S. Trucking, 29 A.D.2d 979; Aranzullo v Collins Pa......
  • 136 Cal.App.2d 715, 16841, Schefke v. Superior Court
    • United States
    • California California Court of Appeals
    • November 3, 1955
    ...normal operation of a vehicle includes more than its movement over the highway." Thus in Elfeld v. Burkham Auto Renting Co. (1949), 299 N.Y. 336 [87 N.E.2d 285, 13 A.L.R.2d 370], in applying a statute making an owner liable for "negligence in the operation of ... [a] motor vehicle......
  • Request a trial to view additional results
25 cases
  • 20 Misc.3d 1109(A), 2008-51297, Reyes v. Chee Trucking Inc.
    • United States
    • June 27, 2008
    ...of the accident alleged. Argentina v. Emery World Wide Delivery Corp., 93 N.Y.2d 554 (1999); Elfeld v. Burkham Auto Renting Co., Inc., 299 N.Y. 336 (1949); Eckert v. the G.B. Farrington Company, Inc., 262 A.D. 9 (4th Dept. 1941), Aff'd, 287 N.Y. 714 (1942); Aranzullo v. Collins Packing Comp......
  • 309 N.Y. 497, Swensson v. New York, Albany Despatch Co., Inc.
    • United States
    • New York New York Court of Appeals
    • January 12, 1956
    ...500 Oliver v. Bereano, 267 A.D. 747, 293 N.Y. 931; Van Dorn v. Jackson Auto Sales, 283 N.Y. 628; Elfeld v. Burkham Auto Renting Corp., 299 N.Y. 336.)III. Defendant's counsel took no exception to the charge so they must concede that the charge is the law of the case. (Saulsbury v. Braun, 223......
  • 93 N.Y.2d 554, Argentina v. Emery World Wide
    • United States
    • New York New York Court of Appeals
    • July 1, 1999
    ...unloading. Notably, the statute has not been limited to situations where the vehicle is in motion (see, Elfeld v Burkham Auto Renting Co., 299 N.Y. 336, 345; Eckert v Farrington Co., 262 App Div 9, affd 287 N.Y. 714; see also, Guadagno v H. S. Trucking, 29 A.D.2d 979; Aranzullo v Collins Pa......
  • 136 Cal.App.2d 715, 16841, Schefke v. Superior Court
    • United States
    • California California Court of Appeals
    • November 3, 1955
    ...normal operation of a vehicle includes more than its movement over the highway." Thus in Elfeld v. Burkham Auto Renting Co. (1949), 299 N.Y. 336 [87 N.E.2d 285, 13 A.L.R.2d 370], in applying a statute making an owner liable for "negligence in the operation of ... [a] motor vehicle......
  • Request a trial to view additional results