Kelly v. Laundry Trucking Co.

Action to recover damages for personal injuries suffered when plaintiffs were struck at a street intersection by an automobile, owned and operated by defendant Murphy, which was being pushed by an automobile truck owned by the corporate defendant. On appeal by defendant Murphy, the judgment, insofar as it is against said defendant, is unanimously affirmed, with costs. No opinion. On appeal by defendant Laundry Trucking Co., Inc., the judgment, insofar as it is against said defendant, is reversed on the law and the facts and a new trial granted, with costs to appellant to abide the event. In our opinion it was error to sustain objections to questions seeking to develop fully the instructions given the operator of the truck by his employer. (Psota v. Long Island R. R. Co., 246 N. Y. 388; Conca v. Cushman’s Sons, Inc., 269 App. Div. 814.) There was further error in the charge of the court that if the owner of the truck reserved to itself the right to determine what business the employee should do and the manner in which he should do it, the employer was liable for the employee’s negligence even though the employee disobeyed the instructions of the employer. (Psota v. Long Island R. R. Co., supra; Flack v. Stahl-Meyer, Inc., 258 App. Div. 961; Fisher v. New York Good Humor, Inc., 265 App. Div. 967; Goldberg v. Borden’s Condensed Milk Co., 227 N. Y. 465; Rolfe v. Hewitt, 227 N. Y. 486.) Johnston, Acting P. J., Adel, Nolan, Sneed and Wenzel, JJ., concur.