Carroll v. City of Yonkers

Jenks, P. J.: The action is for negligence whereby the motor car of the defendant was overturned and the plaintiff’s intestate, a passenger therein, was killed. The contention of plaintiff is confined to defects in the steering apparatus, which she asserts could have been detected by proper inspection. The contention involves the proposition that such inspection would have shown the necessity of the application of a lubricant to prevent the defect. The learned court charged that the obligation of the defendant was reasonable care, which involved reasonable inspection to determine whether the motor car was in reasonably safe condition for work — an absolute and no delegable duty. As actionable negligence involves wrongful act or breach of positive duty {Vaughan V. Transit Development Co., 222 N. Y. 83),- the plaintiff must establish violation of a positive duty owed to her intestate. {Sutton v. N. Y. C. & H. R. R. R. Co., 66 N. Y. 243; S. & R. Neg. [6th ed. Street] § 8, and cases cited.) The question, then, is whether the defendant owed this obligation of reasonable inspection to plaintiff’s intestate. The defendant bought the motor car and thereupon assigned it to the official use of defendant’s department of public works. At the time of the casualty the car was in charge and control of the bureau of the city engineer, a branch of that department. On the day of the casualty the intestate had solicited the city engineer for carriage to a quarter of the city of Yonkers. The engineer consented and went with the intestate in the car, which was driven by an employee of that bureau and of the city. But the intestate was not an officer or employee of that department or of that bureau. He was not servant or officer of the defendant, inasmuch as he was an assessor. {Lorillard v. Town of Monroe, 11 N. Y. 392; Reiser v. Mayor, etc., 104 id. 68.) There is no proof that the defendant had ever duly authorized the said department or the said bureau or any of its- officers, servants or employees, or indeed any of defendant’s officers, servants, agents or employees, to carry outsiders in that car. Mere official possession of the car under the circumstance did not justify the city engineer in the belief that he was authorized to carry this intestate or any third person as a matter of favor. It cannot be said that the city [657] engineer supposed, when he yielded to this solicitation for carriage, he could assume that such carriage was within the scope of his authority as city engineer, or in furtherance of the defendant’s public business. For it appears from his undisputed testimony that there was “ a question before the assessors as to whether certain houses had been built on certain lots within the city of Yonkers, knowledge or ignorance of which had been made to that Board (sic); it was to assist the office in the case that the Assessor wanted to go there.” But when asked whether he would have gone whether the assessor went with him or not, the witness replied that he would not, that he had no particular interest to go there, it was something for the assessor’s knowledge, that the witness went along with him to see what it was, to see what was in the city of Yonkers and what was not; if the city line was to be located it would have come as a general direction from the common council and he had not been so directed. So far as this record shows, the intestate was not engaged about the city’s business. Although an assessor of the city of Yonkers, he was discharging governmental duties. (Authorities, supra; Williams’ Municipal Liability for Torts, 45.) There is no proof that the intestate was inquiring as to a " special assessment of a local character, made for some municipal improvement in which the general public has no direct interest.” (See Id. 46.) The city engineer, at most, but accompanied the intestate as a volunteer. There is no proof that the defendant knew or should have known of this journey or knew or should have known that the department or its bureau or any of its officers, employees or agents had ever carried outsiders in the car. The testimony of a former commissioner of public works that he and the mayor and other officials had agreed that the car might be used by city officials on city business, did not avail the plaintiff’s intestate. It is not shown that the intestate ever heard of this determination. Even if he had, it is not shown that these officials had any authority over the disposition or use of the car, and their mere agreement or direction would not bind the defendant. (Smith v. City of Rochester, 76 N. Y. 506.) Moreover, the intestate was not a city officer engaged about the city’s business. The [658] mere fact that the intestate entered the car as- a self-invited passenger with the assent of the city engineer, did not affect his status so far as the defendant was concerned. In any event, it was not enough that the intestate “ believed that the use was intended; he must bring his belief home to the owner by pointing to some act or conduct of his that afforded a reasonable basis for such a belief.” (Furey v. N. Y. C. & H. R. R. R. Co., 67 N. J. L. 275.) Official possession does not imply private use. The intestate was not a wrongdoer, a trespasser, so to speak, when he entered the car and journeyed in it, inasmuch as he had the acquiescence of the person then in control of the' car. But I think that upon this record the status was but that of a licensee. (Vaughan v. Transit Development Co., 222 N. Y. 79; Heslcell v. Auburn L.-, H. & P. Co., 209 id. 90.) I think that the language of the court in West v. Poor (196 Mass. 183) applies: “ The nearest analogy that occurs to us is that of a self invited guest in whose presence the host acquiesces and whose enjoyment he seeks to promote, or that of a gratuitous bailee. In the former case the degree of care required is that of. licensor and licensee (Plummer v. Dill, 156 Mass. 426; Hart v. Cole, 156 Mass. 475), which, as has often , been said, requires only that the licensor shall hot set traps for the licensee and shall refrain from reckless, wilful or wanton misconduct tending to injure him. Massell v. Boston Elevated Railway, 191 Mass. 491.” In Patnode v. Foote (153 App. Diy. 494) the court cites and adopts the doctrine of Pigeon v. Lane (80 Conn. 237) as to a licensee, and says: “A person thus invited to ride stands in the same situation as a bare licensee, who enters upon real property which the licensor is under no obligation to make safe or keep so, but who is liable only for active negligence,” citing Birch v. City of New York (190 N. Y. 397). In Birch’s Case (supra, 404)' the court held that such an inspection as the court in the case at bar charged was an obligation of this defendant, was not the obligation owed to a bare licensee. (See, too, Weitzmann v. Barber Asphalt Co., 190 N. Y. 452; Vaughan v. Transit Development Co., supra.) There are other questions that arise in such a case, as to the power of the municipal corporation to purchase and to use a [659] motor car even for this department or its bureau, and of the consequent application of the doctrine of Smith v. City of Rochester (76 N. Y. 506) and cases cited, but in view of my disposition of this appeal I have not deemed it essential to discuss them. I advise that the order be reversed and that a new trial be granted, with costs to abide the event. Rich, Putnam and Blackmar, JJ., concur; Kelly, J., concurs in separate opinion.