The first trial of this case, in which all of the questions now urged were raised, resulted in a nonsuit, and the judgment entered thereon was reversed by this court (128 App. Div. 214). While Mr. Justice G-aynor, writing for the court, discussed but one question, i. e., the liability' of charitable corporations to strangers for the. negligence of servants, if any of the propositions now, as-then, urged by the defendant are tenable, that judgment should have been affirmed. Rice questions are involved, a reason perhaps for a. review by the Court of Appeals, but not for us to send the case back for a third trial, after which the .parties will be in precisely the situation they were in after the first trial. While it does not seem to me that those questions are now open in this court, the point discussed by Mr. Justice Rich deserves notice..
The answer admitted that the defendant owned, controlled and managed the St. John’s Hospital in the borough of Brooklyn, and in connection with it owned and used an ambulance. The plaintiff made a prima facie case by' showing that he was injured through the carelessness of the driver of an ambulance owned by the defendant; that the words “ St. John’s Hospital” were on the driver’s cap, and that after the. accident, by the direction of the ambulance *843surgeon, the plaintiff was put into the ambulance and taken to the defendant’s hospital. To meet that the defendant relied on the testimony of Williamson, the liveryman,.who testified in effect that, pursuant'to some arrangement with the defendant, the exact terms of which were not disclosed, he was in the habit of sending to the defendant’s hospital, upon call, a horse and driver for the ambulance, and that he employed and paid Flood, the driver, whose negligence caused the accident. He further .testified as follows: “Q. Did the defendant have any right to discharge Flood % A. Well? they could have sent him back, he was in my employ. By the Court: Q. He asks you whether the hospital people had any right to discharge your driver ? A. Yes, sir; they could have sent him home ; they could discharge him after ; I could not pend him up if he did not suit them. * * * Q. Would you have discharged him then ? A. Well, if I could not work. him there I would have to discharge him. He had some other duties besides driving the ambulance ; he was the regular driver of that ambulance from the time the other party died, was driving before that. * * * On the 21st of May, 1904, we had three or four drivers in our employ whom we sometimes sent on these ambulance calls, and we would select which everone would be in to go. This man was not always sent; if he was not in we could not send him. * * * At the time this accidént happened Flood was then, the regular driver for the ambulance. I don’t remember any telephone call coming in from the hospital that day. * * "x" But I know the course of business was that they would send up for a driver and a horse when they wanted one. * * * My arrangement as to the hospital authorities under whose direction he should be when I furnished him to the hospital was, he would have to get the directions to go to the hospital. * * * I did not attend to that at all after he left my stable and went to the hospital; for the time he was gone ■ from my stable back to the time he returned to it I did not give him any direction at all as to what he should do or where he should go.”
The question on this branch of the case is, who ran the ambulance, Williamson or the defendant ? Differently stated, did Williamson as an independent contractor .undertake to drive it, the defendant being concerned only with the result, i. e., the arrival of *844it at-its destination in proper time, or did the defendant with a hired horse and driver run the ambulance and retain, control of the means and method of attaining, that result % Did Williamson retain control of Flood, the defendant having the right only to direct him where to go and perhaps how fast to drive, or did Williamson for the time being surrender the control of him to the defendant ? At the best, Williamson's testimony, so far as it bears on those questions, is too equivocal to justify-a nonsuit in the face of the plaintiff’s primó, facie case.
The defendant also called Dr. Moorhead, the ambulance surgeon, who testified that, when the accident occurred, the ambulance in his charge was oh its way to get a patient, whether a pay patient or not he did not know, and that for such services the defendant usually, made a charge. He further testified as follows: “ I think I had charge of the ambulance then — I gave directions to the driver that day. * * ■* I told him to make time; I certainly did tell him to go fast. * * * My ambulance and the horse were not close- up to the curb. I made a short turn past that corner.”
It seems to me that the testimony of the two witnesses above referred to, in connection with the circumstances constituting the plaintiff’s prima facie case, the nature of the service in which the driver was -engaged, and the fact that by reason of it he had -special privileges in the streets, not only presented a question of fact, but justified a finding to the effect that, at the time of the accident, Flood was iri the employ and subject to the control of the defendant.
Ho doubt the accident happened by reason of the driver’s attempt “ t-o make time.” The negligence" consisted in cutting a short corner in violation of- the city ordinance. I think that the jury was justified in • finding that the defendant had the right to direct liow he should turn the corners if, indeed* the ambulance •surgeon in charge did not actually exercise that right. The maxim respondeat superior is' applied to make men accountable for the conduct of their own affairs, and to insure such accountability, the master is not permitted to deny that the servant had authority. So far as the presence and acquiescence of the ambulance surgeon in... charge could give it, Flood certainly had implied authority to cut the corners even if he was not actually directed' to do it.
*845The case does not seem to me to he at all like that of the ordinary hiring of a livery turnout or of' the employment of a truckman to transport goods, in which cases the driver remains the servant of the independent contractor. For the purposes of this case, the defendant may be regarded as in the position of the liveryman or the truckman, and as having hired the horse and servant of another for temporary use in its business, the servant becoming ad hoo its servant.' It seems to me that Baldwin v. Abraham (57 App. Div. 67; affd., 171 N. Y. 677) and Howard v. Ludwig (57 App. Div. 94; affd., 171 N. Y. 507) are controlling. The case of Moore v. Stainton (80 App. Div. 295), relied on by the appellant, is plainly distinguishable. In that case the truckman, contracting independently, retained the control of his men.
The judgment should be affirmed.