Fabisiak v. Empire Steel Partition Co.

228 A.D. 665

Opinion

— -Judgment reversed upon the law and the facts, with costs, and complaint dismissed, with costs. We are of opinion that upon the record in this ease the infant plaintiff was not upon defendant’s premises at the time of the accident, with the defendant’s consent, permission or knowledge, and as to it was not a licensee. Defendant’s employee, in sending plaintiff upon a personal errand, was not acting within the scope of Ms employment or in furtherance of defendant’s interest. (Muller v. Hillenbrand, 227 N. Y. 448; Rolfe v. Hewitt, Id. 486; Mott v. Consumers’ Ice Company, 73 id. 543.) Lazansky, P. J., Young, Kapper and Hagarty, JJ., concur; Carswell, J., dissents and votes to affirm, with the following memorandum: Defendant’s proof was that the maeMne was guarded and that the guard made an accident impossible. The jury found that the boy was injured by the maeMne; therefore, the jury found that the machine was not guarded. TMs failure to guard was a violation of the statute, the primary purpose of wMch, but not the sole purpose, was to protect defendant’s employees. The maintenance of the maeMne in tMs unguarded condition while functioning was in the nature of a trap wMch operated to the damage of the plaintiff, and for the maintenance of wMch trap defendant should be required to respond to plaintiff even though he is not a licensee.