MARGARET COWELL, as Administratrix, etc., of EDWARD COWELL, Deceased, Respondent,
ELIZABETH SAPERSTON, Appellant, Impleaded with JOHN J. BROWN, Defendant.
APPEAL by the defendant, Elizabeth Saperston, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 13th day of June, 1911, upon the verdict of a jury for $5,000, and also from an order dated the 16th day of June, 1911, and entered in said clerk's office, denying the said defendant's motion for a new trial made upon the minutes.
Clinton B. Gibbs, for the appellant.
Joseph A. Wechter and Andrew B. Gilfillan, for the respondent.
About seven o'clock on the evening of October 20, 1910, Edward Cowell, the plaintiff's intestate, while crossing Elk street, in the city of Buffalo, was struck by an automobile owned by the appellant and received injuries from which he died within twenty-four hours. The plaintiff brought her action against the defendant and one John J. Brown, who was in the automobile at the time the collision occurred, and the jury rendered a verdict against the appellant only.
Elk street extends in an easterly and westerly direction and crosses Louisiana street at right angles. There are two street car tracks in Elk street, the northerly of which is for cars going westerly, and the northerly rail of this track is 138/10 feet from the northerly street curb. Cowell and Dailey, a fellow-workman, on the evening of the accident were going from their place of work homeward on an Elk street car
going east. The car stopped from 125 to 150 feet west from Louisiana street and the plaintiff's intestate and his companion, with other passengers, alighted. Cowell and Dailey went around the rear of the car and started, not on a crosswalk, diagonally to a barber shop on the opposite side of the street. Cowell was ahead and when he was between the rails of the northerly track he was hit by the automobile of the appellant, which was going westerly at twenty miles an hour. No horn was sounded on the automobile or other signal given of its approach, as the evidence undisputedly shows. The automobile, as it was going westerly, was close to the curb. There was another automobile close to the curb in front of the barber shop and, as it is claimed, for the purpose of avoiding this machine the automobile of the defendant when within about forty feet of Cowell suddenly veered to the south upon the northerly car track, and so struck Cowell. There was ample space between the automobile standing in front of the barber shop and the northerly rail of the car track for the automobile to pass in safety. When the automobile which struck Cowell was within a few feet of him a man named Carberry gave a warning of the danger, but Cowell either did not hear it or did not have time in which to avoid the danger.
The questions of the negligence of the driver of the automobile and the freedom from contributory negligence of plaintiff's intestate were for the jury to determine, and there is not much claim that it went astray on either of these questions.
The interesting question is whether the negligence of Etjen, the chauffeur, is imputable to the appellant, Mrs. Saperston. The automobile was owned by her. It was an expensive Thomas seven-passenger car. Etjen was her regular chauffeur. She was a widow and the defendant Brown had been a friend of her husband, who died about two years prior to the accident. Brown was a candidate for State Senator and had used the automobile once before in conducting his campaign. He talked with Mrs. Saperston over the telephone, and gives this version of the conversation: 'I called her up and told her I had some campaign literature that I wished to distribute in South Buffalo that afternoon--I believe it was the day before I called her up--and asked her if her chauffeur might take me
out riding through this territory. She said she would be very glad to send him down.'
Etjen, the chauffeur, testified: 'Mrs. Saperston says: 'George, drive down to Mr. Brown's office; he wishes to go out campaigning, and take him wherever he wishes to go, in the afternoon. Mr. Brown is running to be State Senator, and I am lending the car to help him out.' Mrs. Saperston said I might get back before dark if I possibly could; she didn't want to leave the car ...