Malachowski v. Edward Smith Packing Co.

Judgment and order reversed on the law and a new trial granted, with costs to the appellant to abide the event, on the ground that the question of whether plaintiff and the driver of the car in which he was riding were fellow servants engaged in the same employ and in the course of such employment at the time of the accident was a question of fact which should have been submitted to the jury, and refusal to do so was reversible error. All concur, except Harris and Larkin, JJ., who dissent and vote for affirmance. (The judgment is for plaintiff against defendant Packing Company in an automobile negligence action. The order denies a motion for a new trial.) Present — Dowling, Harris, McCurn, Larkin and Love, JJ.