259 A.D. 1053 | N.Y. App. Div. | 1940
Action to recover damages for personal injuries. The plaintiff was employed by the Works Progress Administration as a laborer, and Ms duties were to work beside a macMne which, together with its operator, had been hired by the Administration from the defendant. The plaintiff had a verdict in Ms favor and defendant appeals from the judgment entered thereon. Judgment reversed on the law and the facts and a new trial granted, with costs to abide the event. It was error to charge as a matter of law that the operator of the macMne was the defendant’s employee, for whose negligence the defendant is liable. Under the facts in tMs case the issue should have been submitted to the jury as to whether or not the defendant had surrendered control of the machine and its operator to such an extent that the operator became, for the time being, the servant of the Works Progress Administration and subject to its instructions in the maimer of operation of the maeliine. Hagarty, Adel and Close, JJ., concur; Lazansky, P. J., and Carswell, J., dissent and vote to affirm the judgment.