The order appealed from sets aside a verdict and grants a new trial “upon the ground that said verdict is against the weight of evidence not only as to ownership and control of the vehicle alleged to have run over the plaintiff, but also on the question of the defendant’s negligence.”
Plaintiff at the time of the accident was a child five years of age. Three eye witnesses testified that they saw the boy leave the curb on-the south side of Thirteenth street between Avenues B and C, when the team which injured him was 160 to 180 feet from him. Two of them testified that before he started the boy looked up and down the street. They all testified that there were no other vehicles in the street; that he proceeded straight across towards the north side of the street and had reached about the middle of the. roadway, which was testified to be 30 feet wide, and had crossed in front of the team when he was hit by the horse on the north side and knocked under the wheels. A fourth witness testified that she saw .him at the moment that the wheels were passing over him, and that they were the wheels on the north side of the wagon. There is no dispute but that the wagon proceeded at least 100 feet after the. accident and was stopped by people who ran after it.
*735Two witnesses for the defense testified that the boy wasplaying in the roadway with other boys; that he was not hit by the horses, but backed into the wagon between the fore and hind wheels and was thus knocked down and run over. It is clear that an issue of fact was presented as to the defendant’s negligence which required submission to the jury. That issue they decided in favor of the plaintiff and the verdict is fully sustained by the evidence and should not have been disturbed by the trial court.
In regard to the ownership and control of the vehicle, a jprima facie case was made out by the plaintiff when it was shown that the truck carried a sign, “Berger Manufacturing Co., 210 East 23rd Street, metal ceilings.”
The defendant claimed that it had an oral arrangement with Heller & Klosset to do its trucking at. fifty dollars per week, from seven o’clock A. m. to five o’clock p. M.; that this accident happened at about five-thirty p. it. and that it was not responsible therefor. The general manager, one of the principal stockholders of the defendant, and the only witness for defendant upon this point, testified that the Berger Manufacturing Company originally did its own trucking; that Heller & Klosset “ had been employed by us since 1898; they were drivers for us. I mean at the time we did our own trucking; ” that he bought the trucks originally in 1897; that the company sold the trucks to Clinchy in 1902 or 1901 and that Clinchy then made deliveries for the company, and while he was doing that he had Heller and Klosset working for him as his drivers; that. Clinchy had the trucks for about two years and that the witness then bought the trucks, “and I wanted■ Heller & Klosset to continue to do the driving, making deliveries.” “I sold those trucks to Heller & Klosset; I have no evidence of the fact that that was- a sale by me to them, none at all, * * * in January, 1906;” that he paid the feed bills, the horseshoeing and other wagon bills, and everything else connected with ■ the running of those teams; that the accident occurred in May, 1907, and that a chattel mortgage was taken on August 7, 1907, although he claimed the trucks had been sold to Heller & Klosset in January, 1906.
The following is from the record: “Q. What was your reason *736for taking the mortgage after the accident ? A. On account of this action. They had brought suit against Mr. Heller, I believe also, and I wanted to protect myself against that suit. Brought suit against Heller for the same accident. * * * Q. And withdrew that suit. That suit has never been pressed to trial, has it," to your knowledge ? A. I don’t know. Q. Is Mr. Heller here in court ? A. Ho, sir. Q. Was he here at the last trial? A. Tes, sir. Q. Is Mr. Klosset here in court? A. Ho, sir. Heller is still doing our tracking. He is not here this morning; he is not going to be here this afternoon.”
This testimony was given by a highly interested witness. It was entirely uncorroborated. Heither Heller nor Klosset was produced. • The jury were entitled to find and did find that the story of the relations between the defendant and its drivers, by which it undertook to escape responsibility for the accident, was incredible.
The learned trial court charged the jury: “If you find that there was a contract, as sworn to by one of the witnesses in this case, of employment merely for the delivery of the defendant’s goods, and that the truck, the team and the driver were the property of and under the direction and absolute control of Heller & Klosset, then of course no liability attaches to these defendants and the case ends ; but both are questions of fact for you to determine upon the evidence in this case.”
The point was thus clearly presented to the jury. We think, that their answer in favor of the plaintiff was not against the weight of evidence.
The order appealed from should be reversed and the verdict reinstated, with costs and disbursements to the appellant.
Ingraham, P. J., Scott and Miller, JJ., concurred; Dowling, J., dissented.
Order reversed and verdict reinstated, with costs to appellant. Order to be settled on notice.