JOSEPH JEROME, an Infant, by ARTHUR JEROME, His Guardian ad Litem, Respondent,
PETER L. HAWLEY, Appellant, Impleaded with PORTER H. WAGER.
APPEAL by the defendant, Peter L. Hawley, from a judgment of the Supreme Court in favor of the plaintiff, entered
in the office of the clerk of the county of Albany on the 30th day of September, 1910, upon the verdict of a jury for $300, and also from an order entered in said clerk's office on the 25th day of October, 1910, denying the said defendant's motion for a new trial made upon the minutes.
Robert W. Fisher, for the appellants.
Walter H. Wertime, for the respondent.
The action was brought to recover damages for personal injuries. At about six o'clock in the afternoon of May 7, 1910, the appellant, having accepted the invitation of one Porter H. Wager, was riding with him and others in his automobile. They had gone about three miles from Cohoes when the machine became disabled. Adam Peets, who was proceeding in the opposite direction in his automobile, offered to assist them. Hawley procured a rope fifty feet long, with which the two machines were connected, and in this way the disabled machine was towed back to Cohoes, forty or fifty feet in the rear of the other. Wager and one of his party rode in his machine, while the rest of his party, including the appellant, rode with Peets. The evidence on the part of the plaintiff tended to show that the defendants started down Columbia street on the left-hand side; that they soon turned to the right-hand side and after going a short distance 'the first one shoots to the left again, and left the other one on the right side. * * * That rope was crossing over Columbia street, * * * slantways on Columbia street. The rope was tied on each one of the automobiles. The rope struck his bicycle, that knocked the bicycle down, and he fell to the ground.'
The plaintiff testified that he was going down towards the track on Columbia street, in the same direction as the automobile 'and somebody hollered to look out for an automobile, and I got out of the way. The first automobile went by, and when I turned my bicycle half way I got hit by something and I went down on the ground. * * * After I fell, somebody picked me up, and I noticed the automobile back. There was an automobile about five or six feet behind me.'
The court charged the jury that there was no dispute in the testimony that the lamps upon the machine were not lighted, and left it to them to say whether the defendants, in the exercise of reasonable care, ought to have had the lamps lighted, and whether any signal ought to have been given, under the circumstances of the case, by the parties operating the machine and whether any signal was given.
The theory upon which the action was tried and submitted to the jury was that the appellant was liable to the plaintiff, not only for the negligence of the owner of the car in which he was a passenger, but for the negligence of the owner and driver of the car in tow. I know of no principle upon which the appellant can be held liable under the circumstances surrounding the driving of the cars on this occasion. The uncontroverted facts show that the appellant did not employ, pay, direct or control the driver of either car in any way. His only connection with the accident was the fact that he was a passenger and procured the rope and assisted in tying it to the cars. It is also to be observed that, independent of the fact that the driver of the car, in which the appellant was riding as his guest, was not under the direction or control of the appellant, so that his negligence, if there was any, cannot be imputed to the appellant, we have the undisputed fact that the negligence of this driver in operating his car was not the cause of the accident. His car was seen by the plaintiff, and had passed him when the accident occurred.
If it be assumed for the purposes of the argument that the defendant was negligent in procuring the rope, and is chargeable for the manner in which the cars were connected, it is clear that this negligence was not the proximate cause of the accident. The negligence of Wager, the driver of the car in tow, was an intervening and the responsible cause of the accident. It was his omission to recross the street and to follow straight behind the other car. Neither Hawley nor the driver of the forward car was bound to anticipate that he would continue in the same direction and thereby cause the rope to sweep the street, without which the accident would not have happened. In this respect this case is not distinguishable on principle from Leeds v. New York Telephone Co. (178 N.Y. 118), where an
intervening force came in upon the existing situation and produced the ...