Giglio v. Rubin

McCurn, J. This is an appeal from a judgment entered upon a nonsuit and dismissal of the complaint at the end of plaintiff’s case after a jury trial. The action is to recover damages for personal injuries sustained by the plaintiff while assisting an employee of the defendant in the performance of his duties, at the request of the employee. Defendant conducts a fruit and vegetable market in connection with which he maintains an outside fruit stand. The stand is on ball-bearing rollers and is movable. A scale is suspended immediately above the stand from a hook at the end of a steel bar extending from the wall. About 6:00 a.m. on Sunday, April 25, 1948, defendant’s father, Julius Rubin, arrived at the [202] store and began to prepare for the day’s business. Plaintiff, a taxi driver whose hack stand was nearby, knew the defendant and his father. He and two other cab drivers were in the vicinity of the store when Julius asked if one of them would help him hang the scale. Plaintiff, who was the closest, said he would do so if Julius would hold the stand so that it would not roll out from under him. Julius agreed, whereupon plaintiff got on top of the stand; Julius handed the scale to him and while in the act of lifting the scale up to hang it on the hook, felt the stand shift towards the curb. He looked around and found that Julius had left the stand and gone into the store to get some of the merchandise that was to be brought out. As the stand moved towards the curb plaintiff reached up to get hold of the steel bar and in doing so a ring on his finger caught on to the hook and as he fell to the ground his finger was torn off. At the end of the plaintiff’s case the trial court struck out the testimony of the conversation had between Julius and. plaintiff, on the ground that it was not binding upon defendant since no employer-employee relationship had been established. He then granted a motion to dismiss the complaint on the ground that no actionable negligence had been proved. The testimony presented, as we view it, questions of fact as to the negligence of Julius, and as to the contributory negligence of the plaintiff. However, the defendant may not be charged with the negligence of Julius, unless his alleged negligent acts were within the scope of his authority as the defendant’s agent (Bernhardt v. American Ry. Express, 218 App. Div. 195, 197; Sharp v. Erie R. R. Co., 184 N. Y. 100, 105). The defendant was not present at his place of business on the morning of the accident. Julius was defendant’s sole representative present and in charge of the store. The plaintiff testified that defendant’s father, Julius, opened the store on that morning, that he had known Julius, had seen him at the store for a period of about two and one half years and “ On Sundays especially he would open the store and run the business all day.” Management and control of the premises and the business conducted thereon would normally include some freedom of judgment and discretion on the part of the agent in charge as to the manner and method of preparing the store for the business of the day. Apparently it was a necessary part of such preparation to place the movable stands in position to display the merchandise for sale and also to place the scales in their usual position. The hook upon which the scale [203] was to be fastened was apparently too high for the normal reach. Julius, whom plaintiff describes as an “ old gentleman ” asked the plaintiff, a younger man thirty-three years of age to climb upon the movable stand and fasten the scale upon the hook. Julius in turn, according to plaintiff, agreed to hold the stand to prevent it from moving while plaintiff stood upon it. The plaintiff’s inability to produce any direct evidence as to the scope of the authority of Julius is not necessarily fatal to his case. We think that from the undisputed testimony that Julius was in charge of the premises and the business, and from the general nature of his duties and the circumstances under which he acted, a jury might reasonably draw the inference that his acts in question were within the general scope of his authority. In such a situation the scope of the agent’s authority is ordinarily a question of fact for the jury. (See Rounds v. Delaware, Lackawanna & Western R. R. Co., 64 N. Y. 129; Collins v. Butler, 179 N. Y. 156; Curran v. Buckpitt, 225 App. Div. 380, 382; Sharp v. Erie R. R. Co., 184 N. Y. 100, 105, supra; Buck v. Standard Oil Co., 224 App. Div. 299, 300.) Plaintiff was not in the category of an employee or a fellow servant of Julius. He was there at the invitation of Julius, under circumstances from which the inference is permissible that he was an invitee to whom the defendant owed a duty of reasonable care. (See Ferro v. Sinsheimer Estate, Inc., 256 N. Y. 398, and Halverson v. 562 West 149th St. Corp., 290 N. Y. 40.) The conversation between Julius and the plaintiff was a part of the res gestae and also constituted in part the act for which the defendant is being sued and it was error to strike out the testimony. (See Golden v. Horn & Hardart Co., 244 App. Div. 92, 94, affd. 270 N. Y. 544.) We conclude that plaintiff’s evidence presented a question of fact and that it was error to grant defendant’s motion for nonsuit and dismissal of the complaint. The judgment appealed from should therefore be reversed, and a new trial granted, with costs to the appellant to abide the event.