8 A.D.2d 944 | N.Y. App. Div. | 1959
In an action by an employee against his employer and a fellow employee, under the Federal Employers’ Liability Act (U. S. Code, tit. 45, § 51 et seq.), to recover damages for injuries resulting from an assault by the fellow employee, the employer appeals from a judgment entered on a jury verdict for $175,000, in favor of the employee against his employer and the fellow employee. Judgment insofar as it is in favor of respondent and against appellant reversed upon the law and the facts, with costs, action severed, and complaint dismissed as to the appellant. Accepting as true the proof adduced by respondent, the following are the essential facts: Appellant operates a pier on the North River in the Borough of Manhattan, City of New York. Respondent was employed by appellant as a special railroad patrolman. On February 10, 1955, about 10 or 15 minutes before 7:00 p.m., respondent engaged one William Moore in conversation as Moore arrived at the pier. Moore was a foreman, also employed by appellant, of a gang of freight handlers. Neither respondent nor Moore had jurisdiction or supervision over the other. Moore’s tour of duty did not commence until 7:00 p.m. Respondent asked Moore if he would have some of his men move freight on the pier. Moore replied that he had to go up to cheek men in and out. Respondent said that he understood that. Respondent merely asked Moore if he could show Moore where the freight was located. Respondent did not touch Moore. Moore said “I can’t be bothered with that now ” and “ I don’t have to take that stuff from you ” and thereupon assaulted respondent. There is nothing in the proof which would enable a jury to find that the assault had been committed by Moore within the scope of his employment so as to render appellant liable under the doctrine of respondeat superior (Sheaf v. Minneapolis, St. P. & S. S. M. R. Co., 162 F. 2d 110). Nolan, P. J., Wenzel, Beldock, Murphy and Ughetta, JJ., concur.