Allen v. Ennis , 253 A.D. 769 ( 1937 )

Appeal by the defendant Keller Motor Car Company, as Keller Motor Co., Inc., from a judgment of the Supreme Court, entered in the Madison county clerk’s office on March 2, 1937, and also from an order entered in said clerk’s office on March 9,1937.

Appeal from a judgment of the Trial Term of the Supreme Court, upon a verdict, entered in the office of the clerk of Madison county on March 2, 1937. The defendant corporation conducted an agency for the sale of Ford cars, and employed a number of sales agents on a commission basis with weekly advances, of whom the defendant Ennis was one. The deceased Allen was a taxi driver, and a prospective purchaser of an automobile. Allen accompanied Ennis while the latter demonstrated a Ford car. Upon approaching a sharp curve in the highway, without following the curve, the car was driven substantially in a straight line over to and on the left side of the road, and on the left shoulder, for a distance of 250 to 300 feet, into a highway fence and into a deep ditch. Five of the fence posts were broken off, the car demolished, and Allen was found on the floor in the back of the car, so badly injured that he became completely paralyzed at once, and died from his injuries two days later. There was no eye witness, except that one person saw the car turn over, but knew little else about the facts. The defendant Ennis did not answer in the action and was not produced as a witness. The corporation defended chiefly on the grounds that there was no proof that Ennis was driving; that there was no proof of negligence; that the corporation did not own the Ford, but that it was owned by Ennis.

The facts mentioned and observed by the witnesses after the accident provided substantial foundation for the inference that the deceased was riding on the back seat of the car, and that Ennis was driving. Likewise there was evidence of such facts as would support the inferences that the car was driven at an excessive rate of speed, on the wrong side of the road for a long distance, and was not during that time in the control of the driver. The defendant offered no affirmative proof of contributory negligence, which, in any event, was a question of fact for the jury. The car in question was licensed in the name of the corporate defendant, and while so licensed had been operated for more than a month by its employee in its business. There was convincing testimony that the corporate defendant carried on a plan for the apparent sale to its agents of the ears used by them for demonstration, and for the registration of these cars in its own name, and they were in fact operated under its license and with its number plates thereon, until sold by the agents. Upon these facts the corporate defendant was not in a position to deny its ownership. (Shuba v. Greendonner, 271 N. Y. 189.)

Judgment and order affirmed, with costs.

Rhodes, McNamee, Crapser and Heffernan, JJ., concur; Hill, P. J., dissents, with an opinion.