Bila v. Bloomingdale

184 A.D. 65 | N.Y. App. Div. | 1918

Page, J.:

This is a statutory action for negligently causing the death of a boy seven years of age.

The evidence as to the negligence of the defendants’ chauffeur, and the contributory negligence of the plaintiff’s intestate, as given by the witnesses on behalf of the plaintiff and defendants, was sharply conflicting and presented issues of fact for the determination of the jury.

The defendants further moved for the dismissal of the complaint, for the reason, as was claimed by the counsel, . that at the time of the injury the chauffeur was not engaged in their business. It would appear that it was for this reason that the court dismissed the complaint. The defendants’ evidence in this particular was as follows: The store of the defendants is situated on Third avenue between Fifty-ninth and Sixtieth streets. The automobile truck of the defendants had been loaded with furniture for delivery in East New York, a portion of the borough of Brooklyn. The most direct route from defendants’ store to the destination was from Third avenue, along Fifty-ninth street, thence across the Queensborough bridge. The chauffeur’s wife had been brought home from a hospital the day before, and he asked permission of the shipping clerk, from whom he received orders, to go home for his dinner. Permission being given, the chauffeur with his helpers proceeded with the truck to his residence at Seventy-ninth street and Avenue A. About an hour afterward, the helpers having returned, they proceeded westward on Seventy-ninth street to Second avenue and south on Second avenue for the purpose of going to the Queens-borough bridge, and at or about the corner of Seventy-seventh street the boy was killed:

When the helpers returned and the truck was started on its journey for East New York for the purpose of making the delivery the chauffeur resumed his master’s business, and the defendants were from that time responsible for his acts. The defendants’ attorney argues that he did not resume his master’s business u,ntil he reached Fifty-ninth street and Second avenue, claiming that then he came within the zone of his employment. There is, however, no zone law which applies to cases of this sort. It might be that when he was going from the store to his home he was pursuing his own ends, but when he started for East New York he was clearly engaged solely in the master’s business. The case should have been submitted to the jury.

The judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.

Dowling, Smith, Shearn and Merrell, JJ., concurred.

Judgment and order reversed and new trial ordered, with costs to appellant to abide event.