McDonald v. Simpson-Crawford Co.

Appellate Division of the Supreme Court of New York

McDonald v. Simpson-Crawford Co.

114 A.D. 859, 100 N.Y.S. 269, 1906 N.Y. App. Div. LEXIS 2212

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 24, 1906

StatusPublished

Cited by7 cases

This text of 114 A.D. 859 (McDonald v. Simpson-Crawford Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McDonald v. Simpson-Crawford Co., 114 A.D. 859, 100 N.Y.S. 269, 1906 N.Y. App. Div. LEXIS 2212 (N.Y. Ct. App. 1906).

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Opinion

Gaynor, J.:

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.

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Gaynor, J.:

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.

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114 A.D. 859, 100 N.Y.S. 269, 1906 N.Y. App. Div. LEXIS 2212, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcdonald-v-simpson-crawford-co-nyappdiv-1906.

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