The sun. [volume] (New York [N.Y.]) 1833-1916, 1908-07-28
YOU CAN'TSUE OWNER OF AUTO
WHEN CHAUFFEUR, OUT on A
JOY RIDE, RUNS YOU DOWN.
1t Doesn't Matter whether or Not the
Owner COnscnted to the Use OF the
Machine-You Can Sue the C1auY eur
A Change in the Law Suggeseed,

1t Doesn't Matter whether or Not the
Owner Consented to the Use Of the
M~achfne-Y0u Can Sue the Chauff eur
A Change In the Law Sugge sted.
The Appellate Division Of the Supreme
Court holds that the owner Of an auto
mobile Is not necessarily responsible In
law for an accident caused by the machine
while 1t Is being operated by the chauffeur
In the absence Of the owner.
Three Of the Justices, Ingraham, Clarke
and Scott, hold that even II the chauffeur
Ia running the machine for his own pleasure
or use With the consent Of the owner the
latter is not responsible. The other two
Justices, Houghton and McLaug hlin, are
Of the opinion that the owner can escape
liability only where It Is clear that the
chauffeur Is using the machine without his
employers sanction.
The evidence showed that Burton s.
Castle had given permission to his ohauf-
feur, Harry Boes, to take his machine
out or September 10. 1904. for his
pleasure. Boes took with him two
women and q man, and at 1:sO In the
morning, while coming down Central Park
West, the machine struck George Cunning
ham, who was crossing the avenue, aud
injured him severely. Justice Clarke. writ
ing he majority opinion reversing the
judgment for damages obtained by Cum
bingham against Castle. a y that it Is
clear that blame for the accident attached
to Boes and not to Cunningham, who was
using all possible care in crossing the street.
But. says Justice Clarke, 1t was. error for
the trial Judge to charge the jury that
full responsibility for the injuries sustained
by Cunningham rested on the owner OF the
machine.
Justice Clarke says that intrinsically an
automobile can no more be classed as a
dangerous instrumentality- and therefore
improperly entrusted to the chauffeur
than q team Of horses and carriage or
wagon or q eailboat or motor launch can
be olassed as q dan gerous fundamentally,
or oven q gun, under certain circumstances.
II a gamekeeper borrows his masters
gun, Justice Clarke asks. would the master
be held liable for any negligence or the part
OF the gamekeeper that resulted in the
shooting Of q man when the gamekeeper
was using the gun for his own purposes
and not for the service OF his employer
Il do not think, says Justice Clarke,
that the question OF the Ignorance or con-
ssnt Of the master has any bearing what
ever upon his liability. The fact that the
servant has used the automobile without
his consent has probative force upon tho
proposition as to whether or not he SER
want was engaged In his masters business
within the scope Of his employment. The
question 10 whether he was or not
Justice Clarke goes on to say that IL the
accident had courred while the chauffeur
was taking the machine, say from the garage
to the machine shop to have 1t fixed, the
had knowiedgs Of the trip. because the
act had happened within the scope of the
servants employment. But II the master
wero to tell his chauffeur that he could usa
the machine for his OWE pleasure while the
master was away On q vacation, the mas
ter would not be legally responsible for
any negligence by the chauffeur during the
vacation.
1T may be- concludes Justice Clarke,
that It would be wise and In the public
interests that responsibility for an aoo-
dent caused by an automobile should be
affixed to the owner thereof. irrespective
Of the person driving 1t, bat the law does
justices Hou ghton and Mclaughlin arc
Of the opinion that the act OF Castle In Civ
machine by the chauff eur. made the owner
for the accident, As they
view It, the chauffeur was technically still
his masters business and the relation !
ship Of master and servant had not been I
But the dissenting Justices are Of ,ons |
with the majority Of the Court that
out without the consent Of his master and
contrary to the %latter's orders, there would
be no liability on the master. 1t Ia ex- |
pected that an appeal will be taken.