191 A.D. 490 | N.Y. App. Div. | 1920
The accident in which the infant plaintiff met with his injuries occurred at a time when the driver of defendant’s truck was engaged, contrary to his instructions, in a personal errand. He was instructed to go to the railroad station, to load his truck with barrels of paint and to return to the factory of the defendant. Instead of doing this, having loaded his truck, he proceeded in an opposite direction to carry some wood, gathered in the railroad yard, to his sister’s home, entirely as a personal, brotherly service. Having delivered the wood to his sister, he turned his truck around to come back to his legitimate employment and route, and had proceeded but a short distance in the street in which his sister resided when he ran over the plaintiff. The point at which the accident occurred was not between the railroad station and defendant’s factory, but beyond the station, in the opposite direction. Under these circumstances, his acts while on this personal unauthorized trip were not the acts of his employer or within the scope of his employment. The connection between the master and servant was broken while he was engaged upon that unauthorized trip for his own personal ends and purposes. (Reilly v. Connable, 214 N. Y. 586; O’Brien v. Stern Brothers, 223 id. 290; Fallon v. Swackhamer, 226 id. 444.) We
The judgment and order should be reversed, with costs, and the complaint dismissed, with costs. This court unanimously reverses the finding of negligence upon the part of defendant implied in the verdict of the jury.
Jenks, P. J., Mills, Blackmar and Jaycox, JJ., concur.
Judgment and order reversed, with costs, and complaint unanimously dismissed, with costs. This court unanimously reverses the finding of negligence upon the part of defendant implied in the verdict of the jury.
