Seaman v. Koehler

• Decision Date: 31 October 1890
• Citation: 122 N.Y. 646,25 N.E. 353
• Parties: SEAMAN v. KOEHLER.
• Court: New York Court of Appeals Court of Appeals

122 N.Y. 646

25 N.E. 353

SEAMAN

v.KOEHLER.

Court of Appeals of New York,

Second Division.

Oct. 31, 1890.

Appeal from a judgment of the general term of the supreme court in the second judicial department, affirming a judgment entered on a verdict, and also affirming an order denying a motion for a new trial.

Action to recover damages for personal injuries alleged to have been inflicted upon the plaintiff by a servant of the defendant's testator. At the time of the accident, plaintiff was a conductor of an open street-car drawn by horses in the city of Brooklyn. A truck alleged to belong to the defendant's testator was negligently driven by the driver in charge thereof against the plaintiff while he was standing upon the narrow platform running lengthwise of the car, engaged in collecting fares. Mr. Koehler died during the pendency of this appeal, and his personal representative has been duly substituted. Further facts appear in the opinion.H. J. Kingsbury

, for appellant.

Charles J. Patterson, for respondent.

VANN, J., ( after stating the facts as above.)

As the ownership of the truck was at issue, it was necessary for the plaintiff to make out a prima facie case in that regard, but the defendant contends that the evidence furnished was insufficient for that purpose. It was admitted that the defendant was ‘a member of the firm of H. Koehler & Co., Twenty-Ninth street and First avenue in the city of New York.’ It was proved that the name on the truck in question was ‘H. Koehler & Co., Twenty-Ninth street and First avenue,’ and that there were many trucks of the same kind employed in the brewery business of said firm as carried on at the location aforesaid. It also appeared that said truck was loaded with ale barrels at the time of the accident; that it had left the brewery that morning in charge of the same driver at half past 9, and had made one delivery; that it left again between 12 and 1 o'clock, and was engaged in the second delivery when the plaintiff was injured. These facts were denied by no one, and they were sufficient, as we think, to authorize the jury to infer that the truck belonged to defendant's firm, and that the driver thereof was in its employment when he negligently ran against the plaintiff. A prima facie case was thus made out for the consideration of the jury, and, if the defendant's firm did not in fact own the truck, or employ the driver, it was incumbent upon him to produce some evidence upon the subject.

The...