Consolidated Traction Co. v. Hoimark

Per Curiam. This suit (like that of Charles Lambertson, just decided), was brought for personal injuries received in a collision between a car of the defendant and a horse and wagon driven by Charles Lambertson, and in which the plaintiff was riding. Aside from the matters discussed in the case of Charles Lambertson, the only point calling for mention is the alleged refusal to charge that the contributory negligence of the driver was imputable to the plaintiff. The sole ground on which the plaintiff could be charged with the driver’s negligence was that, at the time of the collision, the driver was a partner of the plaintiff and engaged in partnership business. The testimony by no means makes it clear that the driver was then so engaged, and the judge charged the jury as follows : “ They were partners, and so far as partnership business is concerned each partner is an agent of the other members of the firm. Whether they were engaged at that time in any partnership matters, or whether the journey through Broad street to Centre market was for the benefit solely of Lambertson, is a question of fact for you to determine. If you find that, at the time the accident occurred, the relation between Lambertson and the plaintiff was that of principal and agent, then I charge you that the negligence of Lambertson may be imputed to the plaintiff and so became his negligence.” Under the circumstances of the case we think this charge fairly presented to the jury the matter for their consideration, and the assignment of error directed against the refusal to [457] charge absolutely that the driver’s negligence was imputable to the plaintiff, cannot be sustained. The judgment is affirmed. For affirmance—The Chancellor, Collins, Depue, Dixon, Gummere, Ludlow, Yan Syckel, Bogert, Hendrickson, Nixon. 10. For reversal—None.