Besnar v. American Railway Express Co. , 115 Misc. 515 ( 1921 )

Guy, J.

(dissenting). Plaintiff appeals from an order setting aside the verdict of a jury in her favor on the ground that it was “ contrary to law.”

The action was brought to recover damages for personal injuries alleged to have been sustained through the negligence of the defendant company, the defendant Nash, who was not served, being admittedly at that time in the employ of the defendant express company. It was conceded that it was part of Nash’s duties to collect packages for the defendant company from the various offices in the ten-story building where the accident occurred. Plaintiff was employed by the owner of the building as a cleaner, and it was part of her duties at times to run the freight elevator from the basement up through, the building. On the morning the accident occurred, while plaintiff was engaged in cleaning, the defendant Nash entered the building and requested her to take him up in the freight elevator. She replied that she would have to ask the foreman, and immediately left her work, went in search of the foreman, obtained his permission to take Nash up in the elevator, returned to the elevator, and, finding it apparently in the same position she had left it, stepped through the door of the elevator into the. vacant, elevator shaft and was injured. The evidence showed that Nash, in her absence, had entered the elevator and proceeded with it to the floors above.

No question of contributory negligence is- presented on this appeal, there having been no contention either on the trial or on the motion to set aside the verdict that the plaintiff had been guilty of contributory negligence as matter of law.

The sole question involved on this appeal is whether Nash in using the elevator in the absence of the operator was acting within the scope of his employment as an employee of the defendant company. The learned trial court and my learned associates have assumed that in the absence of proof that Nash was specifically employed to run an elevator, his act in so doing was not within the scope of his employment. I think this conclusion erroneous. The

general rule is “ For the acts of the servant, within the general scope of his employment, while engaged in his master’s business, and done with a view to the furtherance of that business and the master’s interest, the master will be responsible, whether the act be done negligently, wantonly or even wilfully.” Mott v. Consumers Ice Co., 73 N. Y. 543, 547, cited with approval in Muller v. Hillenbrand, 227 id. 448, 451. See, also, Einhorn v. W. 67th St. Garage, 177 N. Y. Supp. 887; Jones v. Wiegand, 119 id. 441; 134 App. Div. 644; Wooding v. Thom, 148 id. 21; Lewis v. Natl. Cash Reg. Co., 87 Atl. Repr. 345; 84 N. J. Law, 598.

The verdict in favor of the plaintiff was supported by competent evidence and was not contrary to law. The order should, therefore, be reversed and the verdict reinstated, with costs of appeal in this court and the court below.

Order affirmed, with costs to respondents to abide event.