195 A.D. 493 | N.Y. App. Div. | 1921
The action is brought to recover damages, for negligence in the driving of a delivery wagon. The action is brought against
From the evidence it appears that the plaintiff had been an employee of the corporation and left the employment upon the Saturday preceding the Monday, the date of the accident. He was receiving eighteen dollars a week. At the time he received five dollars and there was still due to him thirteen dollars. The regular pay day was Tuesday. He came in Monday morning and asked for the balance of his pay and a check was made out and signed by Weiss, the president. It required, however, the signature of another party who was sick and the check was sent by another employee to the house of this other party for his signature. While the plaintiff was waiting for the return of this messenger he was asked by Weiss, the president of the corporation, to do him a favor and to get the horsé and wagon which was used for delivery purposes and take it to the house of a man by the name of Markowitz. He went to the stable and got the horse and wagon and took it to Markowitz’ house and there met the defendant Weiss. He then asked Weiss what about his check, and Weiss told him that he might walk down to the office and get it or he might get in the wagon and drive to the office, the wagon first being taken for the purpose of getting some asbestos which was needed at the office. , He got into the wagon, Weiss driving. Through the negligence of Weiss in driving the wagón it was .thrown against a street car and the plaintiff suffered severe injuries. There is some conflict in the evidence, Weiss swearing that plaintiff had not left the employ of the corporation, in which case his remedy would have been under the Workmen’s Compensation Law, and not by action. But the facts as stated are facts which the jury was authorized to find, and under those facts the trial court has held as matter of law that plaintiff was the invitee of Weiss and not of the corporation.
It will be borne in mind that the plaintiff was asked to go for this horse and wagon for the purpose of the business of
The judgment should, therefore, be reversed and a new trial granted, with costs to appellant to abide the event.
Clarke, P. J., Laughlin, Page and Merrell, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.