De Carvalho v. Brunner - 223 N.Y. 284, 119 N.E. 563 (1918)

Rule:

Where two or more are unlawfully or negligently racing horses on a street and one injures a traveler, they are jointly and severally liable.

Facts:

The two-horse truck owned by the defendants E. J. Johnston & Co. raced a one-horse truck owned by defendant Oscar Brunner. The one-horse truck owner struck the plaintiffs’ testator, who was crossing the street, and killed him. Plaintiff executors brought an action against defendants to recover damages for the death of the testator. The trial court entered judgment in favor of the executors. Defendants E. J. Johnston & Co. appealed. The appellate division reversed the judgment as against E. J. Johnston, holding that there was no evidence to show that the truck owned by E. J. Johnston in any way contributed to the accident. Plaintiff executors sought review of the decision. 

Issue:

Did the appellate division correctly dismiss the action against defendant E. J. Johnston because of a lack of showing of contributory negligence? 

Answer:

No.

Conclusion:

On appeal, the court reversed the decision of the appellate division. The court stated that where two or more were unlawfully or negligently racing horses on the street and injured a person, they were both jointly and severally liable. The court stated that it was for the jury to say whether the company was liable. The court stated that there was evidence that sustained the trial court's judgment and the action should not have been dismissed.