## Facts

- Luiz da Cunha Carvalho was struck and killed around noon on April 25, 1911, on Water Street near Wall Street in New York City.
- Brunner owned and operated a one-horse truck; E.J. Johnston & Co. owned and operated a two-horse truck.
- The two trucks traveled north on Water Street and, about 175 feet south of Wall Street, the drivers began racing.
- Water Street at that location was about 20 feet wide between curbs and heavily traveled.
- Witnesses described the trucks’ speed as comparable to an ambulance or fire engine responding to an emergency.
- A city ordinance prohibited driving faster than reasonable for traffic conditions or so as to endanger life or limb.
- Brunner’s truck passed in front of Johnston’s truck near Wall Street; the trucks proceeded in close proximity, with hubs about a foot apart.
- About 15 feet north of Wall Street, Brunner’s truck struck Carvalho as he crossed the street; Johnston’s truck did not hit him.

## Issues

1. Whether a truck owner whose driver participated in an unlawful high-speed street race may be held jointly liable for a pedestrian’s death caused by the other racer’s truck, despite no physical contact by the non-striking truck.
2. Whether the evidence permitted a jury to find that the non-striking racer’s conduct was a contributing and proximate cause of the death, making dismissal improper.

## Decision

- The Court of Appeals reversed the Appellate Division’s dismissal of the complaint against E.J. Johnston & Co.
- The court held there was sufficient evidence for a jury to find Johnston & Co. a joint tortfeasor whose participation in the race contributed to the fatal accident.
- The court ruled that causation and responsibility on these facts were for the jury, not for dismissal as a matter of law.

## Legal Principles

- Participants acting in concert in an unlawful or negligent street race may be jointly and severally liable for injuries proximately resulting from the race.
- Physical contact by each participant is not required; liability may rest on participation that helps create or maintain a dangerous condition leading to the injury.
- Where evidence supports competing inferences about contribution and proximate cause in a concerted-activity setting, the question is for the jury.

## Conclusion

Because the evidence supported a finding that Johnston & Co.’s truck raced alongside Brunner’s at unlawful and dangerous speed on a narrow, busy street and thereby contributed to the conditions producing the collision, the claim against Johnston & Co. should have been submitted to the jury and could not be dismissed for lack of causation.


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