(dissenting) — Appellant has alleged, in substance, (1) that respondent owed her a duty to use due care in seeing that she had a safe place to work; and (2) that the duty was breached.
A challenge to the sufficiency of the evidence gives plaintiff the benefit of the evidence most favorable to her claims, together with all reasonable inferences therefrom.
The majority say that the Aronsens “were not to be under the control of the respondent”; that “It was also understood that they [the Aronsens] were to clean the kitchen”; and that “respondent did not supervise nor interfere in any way . . . ” Having made these assumptions, it is a simple enough matter to follow the only path then available to the further point or conclusion that as a matter of law appellant failed to establish her case.
As Judge Foster points out, the matters to which the majority assume answers are the very things all the shooting is about. While it is possible for one to share the majority’s conclusions on the evidence presented, it is also quite possible and reasonable to differ as to them. Under the circumstances, I think it is not for us to determine the terms of the catering arrangement, the relationships of the parties, or what responsibility the Congregation assumed. I am convinced that this case should be determined by submission of these issues to a jury.
April 4, 1961. Petition for rehearing denied.