Casey v. Davis & Furber Mach. Co.
| Decision Date | 03 June 1913 |
| Citation | 209 N.Y. 24,102 N.E. 523 |
| Parties | CASEY v. DAVIS & FURBER MACH. CO. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Supreme Court, Appellate Division, Fourth Department.
Action by John J. Casey, as administrator of the goods, chattels, and credits of Anna L. Casey, deceased, against the Davis & Furber Machine Company. From a judgment of the Appellate Division (149 App. Div. 423,134 N. Y. Supp. 355) affirming a judgment on a nonsuit at Trial Term, plaintiff appeals. Reversed, and new trial granted.
Stewart Hancock, of Syracuse, for appellant.
Louis L. Waters, of Syracuse for respondent.
The action is brought to recover for the death of plaintiff's intestate caused by the alleged negligence of the defendant's servant. The circumstances of the accident are these: The deceased was employed in a woolen mill. The corporation owning and operating the mill had purchased from the defendant a carding machine which, as testified by the president of the corporation, though it was not so specified in the written contract, the defendant agreed to set up and start. The carding machine consisted of three cylinders or rollers over which successively the wool was passed. Automatic feeds were used to feed the stock to the rollers. In this case the feeds were not bought of the defendant, nor was it claimed that the defendant was under any obligation to install them. The defendant did send an employé, one Clow, who, with some assistancefromthe millhands, set up the carding machine. The feeds were set up by the millhands with some assistance from Clow. After the machine had been erected in its place and secured to the floor it was necessary to adjust it and for this purpose to test it by operation. Clow, when starting on this work, observed that an iron ball on the feed was not properly secured, sought to correct this, and while so doing the ball dropped, and, falling through a hole in the floor, struck the deceased, who was on a lower story, inflicting the injuries from which it is claimed she subsequently died.
[1][2] There is but one question presented on this appeal (the complaint having been dismissed at the close of the plaintiff's case): Was Clow in doing the work in which he let the ball drop, acting as the servant of the defendant? The question is a close one, but we think it should not have been decided by the court as a matter of law, but submitted to the jury as one of fact. The defendant paid Clow his wages during the whole time of his work at the mill, but the mill company paid Clow's other expenses. This, however, is not conclusive on the question, because a servant in the general service of one master may in the performance of a particular act be the servant of another. Wyllie v. Palmer, 137 N. Y. 248, 33 N. E. 381,19 L . R. A. 285. Nor is there anything in the argument that, if Clow was not the servant of the mill company, he must...
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