Bratt v. Midland Asphalt Corp.
| Decision Date | 08 July 1960 |
| Citation | 168 N.E.2d 855,204 N.Y.S.2d 191,8 N.Y.2d 963 |
| Parties | , 168 N.E.2d 855 Frank BRATT et al., Appellants, v. MIDLAND ASPHALT CORPORATION, Respondent. |
| Court | New York Court of Appeals Court of Appeals |
Appeal from Supreme Court, Appellate Division, Fourth Department, 9 A.D.2d 860, 194 N.Y.S.2d 455.
Motorist and her husband brought actions against contractor, which was engaged in constructing pavement, for injuries sustained by the motorist in collision between automobile, which she was driving, and truck, which swerved onto wrong side of highway when truck tire blew out, and motorist's husband sought to recover for medical expenses, on ground that driver of truck, which was owned by the driver, was an employee of the contractor. The contractor contended that the driver of the truck was an independent contractor rather than an employee.
The Supreme Court, Trial Term, Chautauqua County, Joseph A. Nevins, J., rendered judgment adverse to the motorist and her husband, and they appealed.
The Appellate Division affirmed the judgment and order denying motion for new trial. Bastow and Halpern, JJ., dissented on ground that it was error for Trial Term to charge as a matter of law that driver of truck was an independent contractor and not an employee of the contractor.
The motorist and her husband appealed to the Court of Appeals, contending that the Trial Term erroneously excluded evidence tending to prove the relationship between the driver of the truck and the contractor, and that the Trial Term erroneously instructed the jury that the contractor was not responsible for negligence of truck driver.
Van Vlack, Goodell & McKee, Jamestown, for appellants.
Jaeckle, Fleischmann, Kelly, Swart & Augspurger, Buffalo (J. Edmund De Castro, Jr., Buffalo, of counsel), for respondent.
Judgment reversed and a new trial granted, with costs to abide the event, upon the ground that the evidence in this case created a question of fact as to the nature of the relationship between the defendant-respondent and the defendant trucker. It therefore was error for the trial court to charge that the defendant trucker was an independent contractor as a matter of law. Johnson v. R. T. K. Petroleum Co., 289 N.Y. 101, 44 N.E.2d 6.
All concur.
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