30 N.Y. 78, Phelps v. Wait

Citation:30 N.Y. 78
Party Name:AARON L. PHELPS v. WILLIAM WAIT and NATHAN WAIT.
Case Date:January 01, 1864
Court:New York Court of Appeals
 
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30 N.Y. 78

AARON L. PHELPS

v.

WILLIAM WAIT and NATHAN WAIT.

New York Court of Appeal

January 1, 1864

COUNSEL

E. F. Bullard, for the appellants.

John K. Porter, for the respondent.

HOGEBOOM, J.

This action is brought to recover damages for personal injuries sustained by reason of negligence on the part of the defendants. The plaintiff was crossing a street in the village of Waterford. The defendant, Nathan Wait, was driving a pair of horses attached to a wagon, which came in collision with the plaintiff, prostrated him and passed over his body. The horses and wagon belonged to the defendant, William Wait, in whose employment, and whose son the other defendant was. Three questions are made in the case:

1. Was the defendant Nathan guilty of negligence?

2. Was the plaintiff also guilty of negligence?

3. Will a joint action lie against the principal and the agent, for the negligence of the latter (in the absence of the former), in the course of his employment?

On the first two questions, very little doubt can arise, and they have been determined as questions of fact in the plaintiff's favor by the referees who tried the cause. The

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plaintiff was crossing a public street in Waterford with ordinary care, and with no reason to apprehend danger. When so crossing there was at first no vehicle in sight with which there could be any prospect of collision. The defendant engaged in an altercation with a drunken man, and his attention being engrossed by him, he drove suddenly and rapidly out of the yard, and run over plaintiff. It was a case of negligence on the part of defendant, and of no want of proper care on the part of the plaintiff. The cases of Steves v. Oswego & Syracuse Railroad Company (18 N.Y. 422), and Johnson v. Hudson Railroad Company (20 N.Y. 65), present no facts or rules of law which interfere with the plaintiff's right to recover in this case.

The case was retained for examination principally upon the other point--the supposed misjoinder of parties--and to enable the defendants' counsel to supply a reference to authorities...

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