100 N.Y.S. 269 | N.Y. App. Div. | 1906
The defendant kept a large retail drygoods store, and employed the plaintiff as a saleswoman. The employees used the elevators in the morning on arriving at work to go to the top floor and leave their street clothes in a room provided for that use by the defendant, and to go there and get the same after the close of the day’s work. The plaintiff was hurt by the fall of the elevator in which she was being carried up with others to get her clothes after the "closing hour. The accident was caused by allowing too many in the elevator. There was a sign up limiting the number to be carried, but an assistant superintendent of the store (so the evidence was) told the plaintiff to go into the elevator after the limited number had gone in. His negligence was that of a fellow-servant. The contention that the plaintiff was not in the employ of the defendant at the time of the accident, it occurring after actual working hours, and that the defendant therefore bore to her only the relation of carrier, is without foundation. Her dressing and undressing was a necessary incident of her employment, and the time thereof was of the time of her employment (Boldt v. N. Y. C. R. R. Co., 18 N. Y. 432; Vick v. N. Y. C. & H. R. R. R. Co., 95 id. 267; Ross v. N. Y. C. & H. R. R. R. Co.; 5 Hun, 488; affd., 74 N. Y. 617; Gillshannon v. Stony Brook R. Co., 10 Cush. 228). The case of Pendergast v. Union R. Co. (10 App. Div. 208) is not in point. There the plaintiff, as servant, was entitled to recover for the negligence of the master for the breach of a duty which it owed to its servants as well as to its passengers. Mor is the case of West v. N. Y. C. & H. R. R. R. Co. (55 App. Div. 464) in point.
The judgment and order should be reversed and a new trial had.
Hirschberg, P. J., Woodward and Hooker, JJ., concurred.
Judgment and order reversed and new trial granted, costs to abide the event.
