Besnar v. American Railway Express Co.

115 Misc. 515

• Court: Appellate Terms of the Supreme Court of New York
• Decided: June 15, 1921
• Status: Published

Opinions

McCook, J.

Plaintiff appeals from an order setting aside the verdict of a jury in her favor on the ground that it was contrary to law.

The action was brought to recover damages for personal injuries alleged to have been sustained through the negligence of the defendant company, the defendant Nash, who was not served, being admittedly at that time in its employ. Part of Nash’s duty was to collect packages for the defendant company from the various offices in the ten-story building where the accident occurred. Plaintiff was employed by the Revelle Realty and Security Company, the owner of the building, as the regular operator of the freight elevator. On the day of the accident, plaintiff had been running the freight elevator all the morning, and then shut it off and was waiting until one o’clock in the afternoon, when she was to go on the passenger elevator and operate that until five o’clock. While waiting for the operator of the passenger elevator to finish his shift at one o’clock, plaintiff was told by the superintendent of the building to clean the hall. While she was thus engaged, the defendant Nash entered the building and requested her to take him up in the freight elevator. She replied telling him to wait a couple of minutes while she finished the hall; she then left the work she was doing, obtained the superintendent’s permission, returned to the elevator, and, finding it apparently in the same position, stepped through the door into the vacant elevator shaft and was injured. The evidence shows that Nash, during her absence, entered the elevator and proceeded with it to the tenth floor of the building.

The plaintiff expressed herself on the stand with difficulty, but this is the substance and effect of her story.

No question of contributory negligence is presented on this appeal, since no contention was made, either during the trial or on the motion to set aside the verdict, that the plaintiff had been guilty of contributory negligence as matter of law.

The sole question involved is whether Nash in using the elevator under the circumstances described was acting within the scope of his employment as an employee of the defendant company. In my opinion running the elevator under the conditions as they existed in this building at the time cannot fairly or reasonably be deemed an ordinary and natural incident or attribute of his employment, or a natural, direct and logical result of it. There is, and in the nature of things could be, no proof in the record that Nash was authorized by the express company to operate elevators in buildings in which he collected packages, and he could not have believed such an act to pertain to his service, which was the collection of packages. Employees of the building, including the plaintiff, were employed to operate the elevators, and at the very time Nash acted he was, following a conversation between himself and the plaintiff, waiting for her, as he had requested, to come back and carry him up. The conduct of Nash in taking this elevator without permission constituted personal intermeddling, which has not even the justification of being necessary to save him a few steps.

Order affirmed, with costs to respondents to abide the event and with leave to appellant to appeal to the Appellate Division, first department.