Kate McDonald, Respondent, v. Simpson-Crawford Company, Appellant

Kate McDonald, Respondent, v. Simpson-Crawford Company, Appellant. Second Department, July 24, 1906. Negligence—injury by fall of elevator—assistant superintendent fellow-servant —when relation of master and servant exists after actual working hours. A saleswoman cannot recover for an injury from the fall of an elevator in a department store in which she was employed, although she was directed to enter the elevator by an assistant superintendent of the store when the elevator already held the number to which its capacity was limited, for the negligence of such superintendent was that of a fellow-servant. The fact that the actual working hours were over and the saleswoman was going to the top floor to resume her street clothes, did not end the relation of master and servant and make the defendant liable as a carrier, for the dressing was incident to the employment and the time thereof was of the time of such employment. Appeal by the defendant, the Simpson-Crawford Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 10th day of April, 1905, upon the verdict of a jury for $1,250, and also from an order entered in said clerk’s office on the 11th day of April, L905, denying the defendant’s motion for a new trial made upon the minutes. George Gordon Battle [Frederick E. Fishel with him on the brief], for the appellant. William F. Hagarty [James T. O'Neill with him on the brief], for the respondent, [MAJORITY — Gaynor, J.:] Gaynor, J.: The defendant kept a large retail drygoods store, and employed the plaintiff as a saleswoman. The employees used the elevators in the morning on arriving at work to go to the top floor and leave their street clothes in a room provided for that use by the defendant, and to go there and get the same after the close of the day’s work. The plaintiff was hurt by the fall of the elevator in which she was being carried up with others to get her clothes after the "closing hour. The accident was caused by allowing too many in the elevator. There was a sign up limiting the number to be carried, but an assistant superintendent of the store (so the evidence was) told the plaintiff to go into the elevator after the limited number had gone in. His negligence was that of a fellow-servant. The contention that the plaintiff was not in the employ of the defendant at the time of the accident, it occurring after actual working hours, and that the defendant therefore bore to her only the relation of carrier, is without foundation. Her dressing and undressing was a necessary incident of her employment, and the time thereof was of the time of her employment (Boldt v. N. Y. C. R. R. Co., 18 N. Y. 432; Vick v. N. Y. C. & H. R. R. R. Co., 95 id. 267; Ross v. N. Y. C. & H. R. R. R. Co.; 5 Hun, 488; affd., 74 N. Y. 617; Gillshannon v. Stony Brook R. Co., 10 Cush. 228). The case of Pendergast v. Union R. Co. (10 App. Div. 208) is not in point. There the plaintiff, as servant, was entitled to recover for the negligence of the master for the breach of a duty which it owed to its servants as well as to its passengers. Mor is the case of West v. N. Y. C. & H. R. R. R. Co. (55 App. Div. 464) in point. The judgment and order should be reversed and a new trial had. Hirschberg, P. J., Woodward and Hooker, JJ., concurred. Judgment and order reversed and new trial granted, costs to abide the event.