Stroher v. . Elting

Danforth, J. The plaintiff, while walking in a public street in the village of Port Jervis, was knocked down and run over by a team of horses and wagon belonging to the defendant. He was injured, and brought this action to recover compensation for the damages sustained. The plaintiff had a verdict, which the Special Term refused to set aside, and judgment followed in his favor. It was affirmed by the General Term. The case shows that the defendant was not present at the collision, and upon appeal to this court the on-ly question raised is, whether the learned trial judge erred in holding as matter of law that he was liable for the driver’s negligence. There was no dispute as to the facts. The team was owned by the defendant, its driver was one McCann, the business transacted with it was the carriage of passengers, and the defendant, testifying in his own behalf concerning the relation between McCann and himself, said, in substance, that the arrangement was that he would furnish the team and equipments, and take care of them, and McCann gather the passengers and collect their fares, which were to be divided in the proportion of three-quarters to himself and one-quarter to McCann. In face of these facts the appellant contends that the relation was not that of master *105 and servant, which may be conceded, and also argues that there was no partnership between them, and assuming that to be so, insists that there can be no liability on the part of one for the other’s act, and we must hold that way or the appeal fails. It is clear, however, that there was a contract relation between them. They undertook to engage together in a moneymaking occupation, to which one contributed as capital the horses, harness and wagon, and food and care for the team, and the other his personal services. The reward of each was to be derived from the avails of the business as such, and not by way of compensation either for services or use of property. As to third persons, therefore, within rules too well settled to permit discussion, each became the agent of the other in the prosecution of the common enterprise, and liable for his omissions and faults in regard thereto. (Champion v. Bostwick, 18 Wend. 175; Leggett v. Hyde, 58 N. Y. 272; Roberts v. Johnson, id. 613.) The learned counsel for the appellant also claims that the court should have directed the jury to inquire whether McCann was, at the time of the injury complained of, in a separate, independent business. Such fact had no evidence for its support, and it would, therefore, have been" error to submit it as one which might nevertheless be found. We think the judgment should be affirmed. All concur. Judgment affirmed.