Elfeld v. Burkham Auto Renting Co.

• Citation: 299 N.Y. 336,87 N.E.2d 285
• Parties: ELFELD v. BURKHAM AUTO RENTING CO., Inc., et al.
• Decision Date: 19 July 1949
• Court: New York Court of Appeals

299 N.Y. 336
87 N.E.2d 285

ELFELD
v.
BURKHAM AUTO RENTING CO., Inc., et al.

Court of Appeals of New York.

July 19, 1949.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Henry Elfeld, as adminsitrator of the estate of Matthew Elfeld, deceased, against the Burkham Auto Renting Company, Inc., and another, to recover damages for the death of plaintiff's intestate. A judgment of the Supreme Court in favor of plaintiff, entered in Queens County, upon a verdict rendered at a Trial Term, was reversed, on the law and the facts, and the complaint dismissed on the law, by the Appellate Division of the Supreme Court in the Second Judicial Department, 274 App.Div. 796, 79 N.Y.S.2d 383. Motion for reargument was denied by the Appellate Division, 274 App.Div. 815, 81 N.Y.S.2d 266. From a judgment in favor of defendant, entered June 16, 1948, upon the order of the Appellate Division, the plaintiff appeals.

Judgments reversed and new trial granted.

[87 N.E.2d 286]

J. Wolfe Chassen, Brooklyn (Martin M. Kolbrener, New York City, Morton Feder and Joseph Winston, Brooklyn, of counsel), for appellant.

Joseph F. Hanley, Brooklyn, and John W. Trapp, New York City, for respondent.

LEWIS, Judge.

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.

[87 N.E.2d 287]

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.

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 Lieutennant Andrews members of the Queens County Motor Vehicle Homicide Squad. After stating that he (Detective Maurer) found the rear tires ‘bald’ meaning ‘no tread’ his further testimony was in part as follows:

‘Q. State what...