Riley v. Carlton

265 A.D. 1032, 39 N.Y.S.2d 687, 1943 N.Y. App. Div. LEXIS 6704

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 13, 1943
• Status: Published

Opinion

memorandum: We think the case was for the jury. Upon the evidence the jury could have found that the plaintiff was engaged by the defendant as a nurse and a companion and not as a domestic servant. When the accident happened, the plaintiff was on an errand personal to herself and in no way necessary to, associated with, or incidental to her employment. The occurrence of the injury was not made more likely by the fact of her employment. Anyone visiting the defendant’s premises would have been subjected to the same risk. This being the ease, even if the plaintiff and the housekeeper, Mrs. Goodrich, were fellow servants, the plaintiff might nevertheless recover since the - risk of injury was not incidental to a common employment. (Volk v. City of New York, 284 N. Y. 279, 283, and cases cited.) (The judgment dismisses the complaint in an action for damages for personal injuries sustained by reason of tripping and falling over an obstruction on the floor of a dwelling. The order is the order of dismissal.) Present — Cunningham, Taylor, Dowling, Harris and McCurn, JJ.