66 N.Y. 11, Robinson v. New York Cent. & H.R.R. Co.
|Citation:||66 N.Y. 11|
|Party Name:||ELIZABETH ROBINSON, Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.|
|Case Date:||April 18, 1876|
|Court:||New York Court of Appeals|
Argued Apr. 6, 1876.
A. P. Laning for the appellant.
J. H. Martindale for the respondent. The negligence of the owner and driver of the horse and buggy was not imputable to plaintiff, and would not defeat a recovery. (Cattlin v. Hills, 65 C. L., 130; Norton v. West R. R. Co., 15 N.Y., 444-447; 19 Id., 342; 20 Id., 492; 38 Id., 260; 45 Id., 631; 6 S.Ct. R., 66.)
The evidence was not sufficient to establish the relation of mistress and servant between plaintiff and Conlon. (Metcalf v. Baker, 18 Abb. [N. S.], 431.)
CHURCH, Ch. J.
The court charged the jury that if the defendant was negligent, and the plaintiff was free from negligence herself, she was entitled to recover although the driver might be guilty of negligence which contributed to the injury.
In determining this question it is important to first ascertain the relation which existed between the plaintiff and Conlon, the driver. It is very clear, and was found by the jury, that the relation of master and servant did not exist. Nor was Conlon, in any sense, the agent of the plaintiff. He had invited the plaintiff to ride to a certain place, which she declined, but stated that if he would come on a specified day she would ride with him to another place where she desired to go for a visit, and it was during that ride that the accident occurred. I do not think that the change affected the relation between the parties. It was the same as if the plaintiff had accepted the first invitation. It is, therefore, the case of a gratuitous ride by a female upon the invitation of the owner of a horse and carriage. The plaintiff had no control of the vehicle, nor of the driver in its management. It is not claimed but that Conlon was an able-bodied, competent person to manage the establishment, nor that he was intoxicated, or in any way unfit to have charge of it. Upon whet principle is it that his negligence is imputable to the plaintiff? It is conceded that if by his negligence he had injured a third person, she would not be liable. She was not responsible for his acts, and had no right and no power to control them. True, she had consented to ride with him, but as he was in every respect competent and suitable, she was not negligent in...
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