Jimmie Jordan was a publicity agent. He came to Comac Sales, Inc., the distributor of the Chevrolet automobile at Glens Falls, and offered to have a Chevrolet driven for one hundred consecutive hours without stopping the motor and with advertising displayed upon it. Comac Sales was to furnish the car, gas and oil. Jordan was to receive the revenue from the advertising. The offer was accepted. Jordan then employed the defendant Harley Caswell to do the driving. He gave him full instructions as to the operation of the automobile and told him that if it rained he was to go inside where he could keep out of the rain, to keep the motor running and to keep awake. With suitable fanfare the mayor of the city handcuffed one hand of Caswell to the steering wheel and the peregrination began. The president of Comac Sales, Inc., and Jordan were both present at the handcuffing. After Caswell had driven the car for about twenty hours without stopping the motor and while traversing a dirt road between two highways it began to rain. He noticed an open barn and drove in. After the rain had stopped he started to back out but found that the car did not move. He “ rocked ” it for two or three minutes by putting it first in low gear and then in reverse, then smelled smoke and shortly after that there was an explosion and fire went all over a hay mow and both the car and barn and contents were burned. Caswell narrowly escaped by picking the lock of the handcuffs with a flat bobby pin. He was the only eye witness to the catastrophe and testified that he did not Imow what set the barn on fire. The plaintiffs are the owners of the barn and contents. They sued Comac Sales, Inc., Jordan and Caswell in negligence. Comac Sales, Inc., alone defended. Upon the trial there was some proof offered by the plaintiff to the effect that when the motor of a car is accelerated this increase of speed *218generally causes sparks of red hot carbon to come out of the exhaust pipe, the inference being that these sparks started the fire.
The court submitted the case to the jury as one of negligence, stating that the issue was whether the appellant was negligent in permitting the use of its automobile by a driver who was shackled to the steering wheel and with the conditions of the test attached. It charged without exception that the driver was neither an employee nor agent of the appellant. The plaintiff had also alleged that the appellant and Jordan were engaged in a joint enterprise, but the court, over plaintiff’s exception, charged that the proof did not establish such relationship. The plaintiffs had a verdict and from the judgment entered on this verdict and the order denying appellant’s motion to set the verdict aside and grant a new trial, this appeal is taken.
With the holding of the trial court that the driver was not the agent of the appellant, we agree. The proof established conclusively that Caswell was employed by Jordan who agreed to pay him and who gave him all of the instructions as to the manner of operation of the automobile. The appellant had no agreement with Caswell, gave him no instructions and paid him nothing. The plaintiffs may not recover here Upon the doctrine of respondeat superior. Nor was there any sufficient proof of a joint adventure. There was neither joint control nor sharing of the profits, both of which are requisite elements of a joint adventure.
While the automobile was owned by Comac Sales, Inc., and this fact furnishes prima facie evidence of its responsibility for the manner in which it was driven (Ferris v. Sterling, 214 N. Y. 249), this presumption vanishes in the presence of substantial evidence to the contrary. (Potts v. Pardee, 220 N. Y. 431.) We may not apply to the appellant the provisions of section 59 of the Vehicle and Traffic Law which makes every owner of a motor vehicle operated upon a public highway responsible for damages to property resulting from negligence in the operation of such motor vehicle by any person legally using or operating the same with the permission, express or implied, of such owner. The damages in this instance were not caused by the operation of the motor vehicle upon the public highway. Hence, this section of the statute does not apply. (Sylvester v. Brockway Motor Truck Corp., 232 App. Div. 364.)
The plaintiffs may recover upon the combined negligence of both the owner and the driver; negligence of the owner in permitting its automobile to be operated by one who was so handicapped in the operation as to constitute an unreasonable danger to others and negligence of the driver in the operation of the car. *219While an automobile is not per se a dangerous instrumentality, so that a recovery might be had here on the ground of mere ownership, nevertheless it has many inherent dangerous propensities. In the hands of an inexperienced, incapable or physically handicapped driver it becomes dangerous and there rests upon its owner a duty to refrain from unreasonably endangering the security of others by permitting bis automobile to be operated by such a driver. This disregard of the general security may be the foundation of delictual liability. (Elliott v. Harding, 107 Ohio St. 501; 140 N. E. 338; 8 Cornell Law Quarterly, 288.) Just as the owner of an automobile may not permit an incompetent or reckless person to operate his car knowing of the incompetency, so likewise an owner may not knowingly permit bis car to be operated by one whose control is limited to such an extent that the vehicle when so operated constitutes an unreasonable danger. The owner may not thus passively permit a danger to be created which he should have reasonably foreseen. The owner is liable if he thus unreasonably creates a danger to others. In the instant case this issue was properly left to the jury and it has been resolved against the appellant.
With the negligence thus established we next come to the question of causal relation between such negligence and the damage. It is not required that the owner should have foreseen the particular injury which resulted. (Palsgraf v. Long Island R. R. Co., 248 N. Y. 339; American Law Institute, Restatement of Law of Negligence, § 435.) “ What constitutes a proximate result is not a problem of philosophy. ‘ The law solves these problems pragmatically.’ (Bird v. St. Paul F. & M. Ins. Co., 224 N. Y. 47, 52.) Fortuitous circumstances may divert the flow of cause to effect from its natural course. New streams of greater volume and force may join the flow. Liability for damages caused by wrong ceases at a point dictated by public policy or common sense. In some situations the courts have established a definite rule of limitation. In others the test is one only of degree.” (Milks v. McIver, 264 N. Y. 267.) The restrictions upon the movements of the driver in the operation of this automobile were such as to influence each of the events which ultimately resulted in respondents’ damage. From the moment when he decided to drive into the open barn down to his failure to attempt to extinguish the fire, the effect of such restrictions is apparent. Even in the origin of the fire itself they may be observed. While the jury might not speculate as to such origin, it surely was not unwarranted in inferring that the attempted operation of the car under these conditions was the cause of the fire. In each of these events the original *220negligence of the appellant was an actual factor, upon each it had its bearing. Whether such original dereliction of duty contributed as a substantial factor to the resulting damage was a question of fact and the jury’s determination should not be disturbed.
The judgment and order should be affirmed, with costs.
Hill, P. J., concurs; McNamee, J., concurs in the result; Heffernan, J., dissents, with an opinion; Crapser, J., dissents and votes for reversal of the judgment and dismissal of the complaint on the grounds that the relationship between Comac Sales, Inc., and Jimmie Jordan was that of independent contractors.