Majority
p. 787DEVONISH v. IMPERIAL INVESTING CORPORATION. (No. 7918.) (Supreme Court, Appellate Division, First Department. November 19, 1915.) Argued before INGRAHAM, P. J., and McLAUGHLIN, LAUGHLIN, CLARKE, and SCOTT, JJ.
Headnote
Master and Servant <s=^>177—Master’s Liability—Fellow Servant.For the negligence of a fellow servant, who was neither a superintendent nor charged with any duty of superintendence, the master is not liable.
[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 307, 352, 353; Dec. Dig. <@=»177.J
«E^jFor other ;»ses seo same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes
Appeal from Trial Term, New York County.
Action by James Devonish against the Imperial Investing Corporation. From a judgment entered on a verdict, and from an order denying a motion for a new trial, defendant appeals. Judgment and order reversed, and complaint dismissed.
Walter L. Glenney, of New York City, for appellant.
Charles W. Gould, of New York City, for respondent._^
The finding that the defendant was negligent is without evidence to sustain it. Whatever negligence there was was that of the other elevator employé, who was a fellow employé, and was neither a superintendent nor charged with any duty of superintendence for the defendant. For such negligence, therefore, the defendant is not responsible. The evidence of the incompetency of this fellow employé had no relation to the accident, as it only related to failure to stop at the proper floor or in the management of the elevator.
The finding that the defendant was negligent is therefore reversed, the judgment and order are reversed, with costs, and the complaint dismissed, with costs.