Goldberg v. Borden's Condensed Milk Co.

| N.Y. App. Div. | Nov 26, 1918

Putnam, J.:

The question here is as to plaintiff’s status as an invitee. Clearly the driver had no right or authority to let plaintiff ride with him. Unlike a public carrier like a railroad or

omnibus company, milk wagons are not held out to the public to carry passengers. If, in spite of the defendant’s rules, posted notices, regulations, and the laws of the State, drivers deceive their employers, and let boys of twelve assist, except when inspectors are in sight, it cannot be held that such invitation or permission is within defendant’s authority, real or apparent. All persons are deemed conusant of the law of the land, and parents are bound to observe the statutes against work by young children. A child of the age of twelve is forbidden to be employed in the distribution or transmission of merchandise, or in the distribution or sale of articles. (Labor Law [Consol. Laws, chap. 31; Laws of 1909, chap. 36], §§ 161, 162, as amd. by Laws of 1915, chap. 386, and Laws of 1911, chap. 866; People ex rel. Price v. Sheffield Farms S. D. Co., 180 A.D. 615" court="N.Y. App. Div." date_filed="1917-12-14" href="https://app.midpage.ai/document/people-ex-rel-price-v-sheffield-farms-slawson-decker-co-5247869?utm_source=webapp" opinion_id="5247869">180 App. Div. 615.) This defendant had enforced this law by suspending any employee violating it, and, in at' least one case, by discharge of such disobedient driver.

On these facts, the plaintiff cannot be deemed an invitee, when both the law of the State and defendant’s regulations prohibited his presence and participation in such milk deliveries. (Eaton v. Delaware, L. & W. R. R. Co., 57 N.Y. 382" court="NY" date_filed="1874-05-05" href="https://app.midpage.ai/document/eaton-v-delaware-lackawanna--western-railroad-3592667?utm_source=webapp" opinion_id="3592667">57 N. Y. 382; Morris v. Brown, 111 id. 318; Elliott Railroads, § 1255.) The case of Grimshaw v. Lake Shore & M. S. R. Co. (205 N.Y. 371" court="NY" date_filed="1912-05-07" href="https://app.midpage.ai/document/grimshaw-v-lake-shore--michigan-southern-railway-co-3597481?utm_source=webapp" opinion_id="3597481">205 N. Y. 371), cited by respondent, was not a liability under respondeat superior, but of defendant’s negligent collision with the engine of another railroad company, lawfully using defendant’s tracks.

It follows that as plaintiff was unlawfully about defendant’s milk wagon, without either the real or apparent authority from defendant, he-cannot recover. I advise, therefore, that the judgment and order be reversed, with costs, and complaint dismissed, with costs.

Jenks, P. J., Thomas and Blackmar, JJ., concurred; Rich, J., voted to affirm.

Judgment and order reversed, with costs, and complaint dismissed, with costs.