Scarangello v. Interurban St. Ry. Co.

BISCHOFF, J. The record discloses abundant evidence to require submission of the questions of the motorman’s negligence and of the plaintiff’s freedom from contributory negligence to the jury. This was tacitly conceded by the defendant’s counsel when the case was suffered to' go to the jury without objection at the close of the whole case. McGrath v. Home Ins. Co., 88 App. Div. 153, 156, 84 N. Y. Supp. 374, and other cases cited by the defendant’s counsel, do not hold that such a concession does not arise from the failure to move for a nonsuit. The cases are to the effect only that the Appellate Division is not precluded from a review of the evidence by the absence of an exception to the trial court’s refusal to direct a nonsuit, as is the rule in cases of appeals to the Court of Appeals. The plaintiff was riding gratuitously upon the wagon at the time of the collision, by the invitation of the driver, who was also its owner. The driver was engaged in the business of carting ice for the plaintiff and his customers and others. But it does not appear that the plaintiff did or was authorized to exercise any con [431] trol whatsoever over the wagon. In no sense, therefore, can the driver be said to have been the servant of the plaintiff, whose negligence would have been imputable to the latter. We find no error in the trial court’s rulings, and the judgment and order appealed from should be affirmed, with costs. All concur. Footnotes [11] 2. gee Negligence, vol. 37, Gent. Dig. § 147.