Citations
- 173 A.D. 925
Full opinion text
Per Curiam:
It does not appear from the evidence that the'automobile which caused the injury was in the possession or under the control of the defendant. It also would appear from the evidence on this trial that the proximate cause of the injury was the negligent act of a third person for whose act the defendant was not responsible. The j udgment and order should be reversed and a new trial granted, with costs to the appellant to abide the event. Present — Clarke, P. J., Laughlin, Scott, Page and Davis, JJ.; Scott, J., dissented.
Scott, J. (dissenting):
I cannot"concur in the reversal of this judgment. In my opinion it was culpably negligent for the person, whoever it may have been, to leave the car open and accessible to any person and so charged with electrical power that the mere pressing of a button or shifting of a lever could start it. The car was an electric automobile, and it was exhibited at an electrical show in the city of New York. Such exhibitions are arranged primarily for advertising purposes with a view to mailing sales. As a rule they are numerously attended, and the persons who attend them are usually curious, especially as to the mechanical operation of the exhibits. Under these conditions if the car was left open the very thing happened which was to have been expected — that someone would enter the car and push buttons and shift levers just to see what would happen. What did happen in this ease was precisely what might have been and should have been anticipated if the car was left in such a condition that it could be started. It did start, and injured plaintiff, and, in my opinion, her injuries are directly traceable to the negligence I have referred to. It surely would have been easy to lock the car so that no stranger could enter it, or take out the storage batteries or in some way to assure that the ear eould not be inadvertently started. I also think that the plaintiff made out a prima facie ease of responsibility against the defendant. It was a car of defendant’s make, sent to the show for exhibition and presumably for sale. It had been brought to the show and left there by one of defendant’s employees, and over the space where the car stood was a large electrical sign bearing defendant’s name. Indeed it is to be presumed that the negligence in leaving the car in such a condition that it could be inadvertently started was that of defendant’s employee who brought the car to the show and left it there. All these circumstances made out on well-established principles a prima facie case of liability against defendant. (Curley v. Electric Vehicle Co., 68 App. Div. 18; Seaman v. Koehler, 122 N. Y. 646.) If, in fact, the defendant was not responsible, but someone else was, that fact was known to defendant and it should have so shown. The defendant knowing the truth and omitting to speak, every inference warranted by the evidence should be indulged against it. (Wylde v. Northern R. R. Co. of N. J., 53 N. Y. 156; Seaman v. Koehler, supra.) The case discloses no errors prejudicial to defendant which warrant reversal, and the damages are not excessive. Even if the person who started the ear was negligent in doing so, which, under the circumstances, is by no means clear, still his negligence will not exonerate the defendant. Even under these circumstances it would be a case of concurrent negligence, and it is no justification or defense for this defendant that another party, a stranger, was also in the wrong. (Sheridan v. Brooklyn & Newtown R. R. Co., 36 N. Y. 39, 41.) The judgment and order appealed from should be affirmed, with costs. Judgment and order reversed, new trial ordered, costs to appellant to abide event.