Opinion
January 3, 1913.
Carl Schurz Petrasch, for the appellant.
Don R. Almy, for the respondent.
The plaintiff has secured a judgment for personal injuries which he received in May, 1909. On that date he was in the general employ of defendant, a corporation engaged in the business of manufacturing interior woodwork. It had a yard at Broadway and One Hundred and Thirtieth street in the city of New York and plaintiff's employment was to handle the lumber which defendant received in its yard for manufacturing purposes. On May 28, 1909, a man named Massey, who was the brother-in-law of one of the defendant's officers and had himself been in defendant's employ, was about to return to Scotland to live and was taking his furniture with him. He had been living in an apartment on One Hundred and Thirty-third street. On the morning of the day on which the accident happened, one Meyer, who was the shipping clerk and foreman for defendant, asked or directed plaintiff to go to Massey's house and help move his furniture. Several other of defendant's employees seem to have been engaged in the same work, and the truck used to move the furniture belonged to defendant and was driven by one of its drivers. Among the articles to be moved was an upright piano, which was safely brought down to the sidewalk, boxed, and loaded on the truck. After the truck was loaded it was sent, in charge of the driver, to the pier of the Anchor Line of steamers. Plaintiff was either asked or directed by Meyer to go with the truck and its load. The evidence is that both Meyer and Massey gave to the driver money with which to hire help at the pier in unloading. The driver corroborates this although plaintiff professes to have known nothing of it. When they arrived at the pier plaintiff and the driver attempted, unassisted, to unload the piano from the truck, when, either because it was too heavy for them or they were unskilled, it slipped and fell on plaintiff's leg, breaking it.
The negligence attributed to defendant is that it failed to furnish sufficient men to unload the piano. There is a fundamental difficulty in the way of sustaining this judgment which is that when the plaintiff received his injury he was not engaged in the master's business. The defendant was not in the business of moving furniture and the general scope of plaintiff's employment did not include such services. It is a rule of the law of master and servant too well settled to require discussion or the citation of authorities that a master is liable to his servant only for injuries suffered in the course of his employment, or in performing services required of him by his master. There is not the slightest evidence that Meyer had authority from defendant to take plaintiff away from defendant's work and put him at work for others in doing something with which defendant had no concern. Nor is any inference of such authority to be drawn from Meyer's position in defendant's employ. It may be, as plaintiff contends, that he believed that he was acting as defendant's servant in assisting in shipping the piano, but that cannot serve to fasten liability on defendant. Furthermore we are of opinion that plaintiff wholly failed to bear the burden of establishing his own freedom from contributory fault or negligence. The size and weight of the piano were apparent to him and he should have been able to form a judgment for himself as to whether or not two men could safely handle it. The accident was probably due to his own maladroitness or that of his fellow-servant, the driver.
It is not necessary to consider on this appeal in whose employ the plaintiff was acting when the accident happened. It is sufficient that he was not then acting as defendant's servant.
The judgment and order should be reversed and a new trial granted, with costs to appellant to abide the event.
INGRAHAM, P.J., McLAUGHLIN, CLARKE and DOWLING, JJ., concurred.
Judgment and order reversed and new trial ordered, with costs to appellant to abide event. Order to be settled on notice.