Rourange v. Colombian Steamship Co.

254 A.D. 906, 5 N.Y.S.2d 537, 1938 N.Y. App. Div. LEXIS 8257

Opinion

In an action brought under the Jones Act to recover for the death of plaintiff’s intestate, who, while employed on defendant’s steamship, was fatally shot by a fellow-employee with a pistol which a passenger had directed him to clean, judgment in favor of defendant, dismissing the complaint, unanimously affirmed, with costs. Assuming that Pardo was acting within the scope of his employment in undertaking to clean the gun, which would have presented a question of fact for the jury, it nevertheless appeared from the plaintiff’s evidence that Pardo had abandoned his duties in displaying the pistol to the deceased, and consequently his employer is not liable. (Ford v. Grand Union Co., 268 N. Y. 243; Culhane v. Economical Garage Co., 188 App. Div. 1.) Present — Lazansky, P. J., Davis, Johnston, Adel and Close, JJ.