Touris v. Brewster & Co.

• Decision Date: 06 March 1923
• Citation: 235 N.Y. 226,139 N.E. 249
• Parties: TOURIS et al. v. BREWSTER & CO., Inc.
• Court: New York Court of Appeals Court of Appeals

235 N.Y. 226

139 N.E. 249

TOURIS et al.

v.BREWSTER & CO., Inc. ^*

Court of Appeals of New York.

March 6, 1923.

Action by Vassilia A. Touris and others, as executors of Sotirios A. Touris, deceased, against Brewster & Co., Incorporated. From an order of the Appellate Division affirming a judgment for plaintiffs (202 App. Div. 426,194 N. Y. Supp. 985), defendant appeals. Reversed, and new trial granted.

Appeal from Supreme Court, Appellate Division, First Department.

John A. Garver, J. Arthur Hilton, and Robert H. Woody, all of New York City, for appellant.

Bertrand L. Pettigrew, Martin B. Faris, Julian S. Eaton, and John A. Hardiman, all of New York City, for respondents.

McLAUGHLIN, J.

This action was brought to recover damages for the death of plaintiffs' testator, alleged to have been caused by defendant's negligence. There have been three trials. On the first the jury disagreed. On the second the complaint was dismissed, but on appeal the judgment of dismissal was reversed, and a new trial ordered. Thr third trial resulted in a verdict for the plaintiffs. The judgment entered thereon was affirmed by the Appellate Division, two of the justices dissenting.

The defendant is a manufacturer of automobiles. One Brown, a mechanical engineer, is its superintendent in charge of the testing department. When an automobile is completed, and before it is offered for sale, it is thoroughly tested by one of his subordinates, and after such test has been made, if it turns out to be satisfactory, Brown himself makes an additional test. On Saturday, June 23, 1917, an automobile had been completed, tested, and found satisfactory by one of Brown's subordinates. Brown then took the automobile for the purpose of making the additional test. He drove it to his home in Yonkers, then put it in a private garage, and the next morning completed his test by driving the car to different places in that vicinity. He finished testing it, according to his uncontradicted testimony, about noon. He then drove the car to his home, took his lunch, and immediately thereafter started to drive it to the defendant's factory, located in Long Island City, at the east end of the Queenshoro bridge. The direct route to the factory took him down Broadway to One Hundred and Sixty-Seventh street, in the city of New York; then down St. Nicholas avenue to One Hundred and Tenth street; then east to and down Fifth avenue to Sixtieth street; then east over the bridge to the factory. One Bedford, at the time in question, occupied under a lease several acres (mostly wooded) of land on the northwest end of Manhattan Island. There was a building on this land in which Bedford lived, also a garage which he used, and a dock or pier on the Harlem River or Spuyten Duyvil creek, where third parties, with his consent, were accurstomed to keep boats. Bedford was a friend of Brown, whom he had previously requested to come to his place and examine an engine in a boat at this pier. When Brown, on his way from his home to defendant's factory, reached Two Hundred and Seventh street, he recalled this request, and for the purpose of complying with it turned west and drove over a dirt or wood road half or three-quarters of a mile to Bedford's garage. As this was occupied, Bedford directed him to stop the car at a place which he pointed out, which was quite level, and where other cars had theretofore many times been left, held only by the emergency brake. Brown put the car at the place indicated, stopped the engine, put on the emergency brakes, which were in good condition, locked the ignition, and put the key in his pocket. He then proceeded to the dock, went upon the boat, and worked over the engine for something like half an hour. Having finished this work, he took the boat upon the river for the purpose of testing the engine, all of which took about two hours. While Brown was on the boat, plaintiff's testator and his family, with other picnickers, arrived in the vicinity of the car. Between where the car was left and the river was a spring of water. The ground at this point is rough and quite steep. The testator went to this spring for the purpose of getting some water, and while in the act of dong so the car plunged down the embankment, struck him, and inflicted injuries from which he subsequently died. The jury found that his death was due solely to the defendant's negligence. A majority of the justices of the Appellate Division has reached the same...