
    Harriet J. Cogswell, Appellant, v. Rochester Machine Screw Company, Respondent.
    
      Negligence — a stranger falling into a freight elevator shaft opened by an employee not authorized to use it—evidence insufficient to establish a custom,—liability of a master for the unauthorized acts of a servant.
    
    A corporation maintaining a freight elevator in a building owned by it is not chargeable with the negligence of a packing clerk in its employ who, while conducting a stranger in the building to the elevator, with the intention of conveying her therein to an upper floor occupied by a tenant of such corporation, to which a flight of stairs also leads, fails, upon opening the door leading into the elevator shaft, to warn her that the elevator is not there, in consequence of which the stranger falls to the bottom of the shaft and is injured, where it does not appear that the packing clerk, although he was in the habit of operating the elevator, had charge of it, or had authority to use it for the conveyance of passengers.
    The fact that in one or two instances, which were never brought to the attention or knowledge of the officers of the corporation, the elevator had been used by the packing clerk for the' conveyance of passengers, is not sufficient to establish the existence of a custom to use the elevator for that purpose, and to charge the corporation with knowledge thereof.
    In order to charge a master with liability for the unauthorized acts of a servant, it must be shown either that the master had actual notice of such acts, or else-that they were committed so frequently and under such circumstances as to justify the presumption of such notice.
    Appeal by the plaintiff, Harriet J. Cogswell, from an order of the Supreme Court, made at the Monroe Trial Term and entered in the office of the clerk of the county of Monroe on the 16th day of June, 1898, granting the defendant’s motion for a new trial made upon the minutes, the jury having previously rendered a verdict for $5,000 in favor of the plaintiff.
    At the time this action was brought the defendant, a domestic corporation, was the owner of a three-story brick building situated on Caledonia avenue in the city of Rochester. The first floor of the building was reached by means of a flight of steps, which extended from the sidewalk to a hall, and in the southeast corner of this hall was a room occupied by the defendant’s president and secretary as an office. This room was separated from the hall by a glass partition, and west of it was another room used as a shop, both rooms having doors which opened into the hall. On the south side-•of the hall was a stairway leading up to the second story, connecting with which was another stairway leading to the third story, and in the northeast corner of the lower hall was an elevator which was used for the purpose of hoisting freight from one part of the build-' ing to another.
    At the time of the accident which lies at the foundation of this action, one William H. Hutchinson was a tenant of the .defendant, and as such occupied the third and a portion of the second floors of this building. Access to his rooms was obtained by means of the ■common entrance on Caledonia avenue, and the stairways leading from the first to the second and third floors.
    On the afternoon of the 5th day of December, 1895, the plaintiff started for Mr. Hutchinson’s place of business in order, if possible, to obtain employment. She was not familiar with the building, never having been there before, and upon entering the same inquired of a gentleman whom she met going out where she could find the elevator. The person to whom this inquiry was addressed was unable to answer the same, but directed her to the defendant’s office. She thereupon went to one of the defendant’s rooms where she met a Mr. Smith, who- was in the defendant’s employ in the capacity of a packing clerk, of whom she made a similar inquiry, and Smith at once left his work and started down the hallway towards the elevator, the plaintiff following him. As they walked along, the plaintiff stated to Smith that she wished to see Mr. Hutchinson, and Smith remarked that his office had recently been removed to the second floor.-
    The plaintiff testified that when they reached the end of the hall she stopped for Smith to open the door of the elevator, which lie did ; that he thereupon turned around so as to face her; that without looking up or down she then stepped through the opening, assuming that the elevator was there, and at once fell to the bottom of the well, receiving injuries which were very painful in their character, and from which it is quite probable she will never entirely recover.
    The evidence of the plaintiff as to what took place after she entered the building was flatly contradicted in several essential particulars by the defendant’s witnesses, and the issues thus presented were submitted to the jury, which found in favor of the plaintiff. A motion was thereupon made for a new trial on the minutes of the ■court. This motion was granted, and from the order granting the .same this appeal is brought.
    
      Arthur Warren, for the appellant.
    
      Edward, Harris, for the respondent.
   Adams, J.:

That the defendant was the owner of the building in which the ■elevator was operated; that the elevator was within its control, and that the young man Smith was in the service of the defendant at the time of the accident, are facts concerning which no controversy arises, and for the purposes of this appeal the verdict of the jury must be regarded as establishing the additional fact that Smith’s negligence, unaided by any concurring negligence upon the part of the plaintiff, caused the injuries of which the latter complains. It follows, therefore, that the defendant is liable, and that the verdict must stand if Smith, in conducting the plaintiff to the elevator, was ■acting within the scope of his authority, or with the knowledge and ■consent of the defendant’s officers, either express or implied.

It is sometimes assumed in cases of this character that, where the relation of master and servant exists, the responsibility of the former for any negligent act of the latter necessarily follows, and such is undoubtedly the rule, provided the negligent act was committed within the scope of the servant’s employment. When, however, the ■servant undertakes to carry out a separate and independent purpose ■of his own, where, in other words, instead of doing that which he is employed to do, he steps outside of his proper sphere of duty to render some service which he is not employed to render, the liability ■of the master ceases. This rule, or, more properly speaking, this •exception to a well-established rule, is so obviously founded in good ■sense and justice as to require no citation of authority to support it.

But it sometimes happens, by reason of the many and diversified ■duties which the servant is required to perform, that it is difficult to ■determine just when he is and is not acting within the scope of his employment. In such cases the law furnishes a test, the application •of which seldom fails to resolve all doubt, and that test is: Was the act complained of committed by the authority of the master, either expressly conferred or fairly to be implied from the nature of the employment and the duties incident thereto ? In short, was it done in the prosecution of the master’s business? (Wood Mast. & Serv. § 279 ; Cosgrove v. Ogden, 49 N. Y. 255 ; Keep v. Walsh, 17 App. Div. 104.)

In order that this test may be properly applied to the case in hand, let us briefly advert to some of the salient features which the evidence may be said to fairly and clearly establish.

The defendant was the owner of a three-story building which it occupied in connection with the tenant Hutchinson, who carried on a separate business; access to the second and third floors of this building was obtained by means of suitable stairs, but in order to facilitate the removal of the goods and merchandise which were manufactured by the defendant as well as by Mr. Hutchinson, an elevator had been constructed in one end of the hall, and this-elevator, which ran from the basement to the third floor of the building, had attached to it a sign which read “ For Freight Only.”

The witness Smith was in the employ of the defendant as its-packing clerk, and his proper place of business when in the performance of his duties was at a table in the shop. Precisely what-his duties were does not appear, but it may be assumed that their performance required him to make use of the elevator; indeed, he testified that he was in the habit of operating it, and it appears that-when he or Mr. Hutchinson had occasion to go from one floor to-another, they used the elevator for that purpose. It does not appear,, however, that Smith had charge of the elevator, or that it was any part of his duty to operate the same for the conveyance of passengers. On the contrary, it does appear affirmatively that he had no authority to use it for any such purpose; and although he admitted that, on two occasions prior to the accident, he had, in violation of the direction printed upon the sign, carried persons upon the elevator from one part of the building to another, he stated that he did so upon his own responsibility, and without the consent or knowledge of the defendant’s officers. In this the witness is corroborated by the evidence of his father, the defendant’s secretary, and by Mr. Boswell, its president and treasurer, as well as by Mr. Hutchinson,, who, although sworn on behalf of the plaintiff, testified that he used the elevator for no other purpose than for freight, except to ride upon it occasionally; that he did not allow his employees to ride upon it, and that if they did so it was contrary to his instructions.

These facts, none of which is seriously controverted by the plaintiff, when subjected to the test to which we have adverted, make it plain, we think, that, in conducting the plaintiff to the elevator with the intention of conveying her thereon to the second floor, Smith not only undertook to do something which he was not employed to do, but that he openly violated the rules and regulations of the business in which he was employed.

It is argued, however, that, even admitting this to be the fact, there was evidence in the case which would justify the jury in finding that in this particular instance Smith was impliedly authorized to use the elevator for the purpose of conveying the plaintiff to the second floor; and this contention is made to rest upon the ground, first, that the defendant’s president and secretary were aware of Smith’s intention when he went out of the office in company with the plaintiff and raised no objection thereto; and, second, that it had been customary for passengers to use the elevator as a means of conveyance for a long time prior to the accident.

The only evidence to sustain the first of these grounds is furnished by the plaintiff herself, who testified that when she entered the defendant’s office and inquired for the elevator, Mr. Boswell, the defendant’s president, was sitting at his desk four or five feet distant from her and that further on was another man whom she assumed to be Mr. Smith, the defendant’s secretary. She did not address either of these persons, nor did they speak to her, but she insists that she spoke in a tone of voice sufficiently loud for them to have heard her. These gentlemen, however, testified that they did not hear the plaintiff make any inquiries nor did they see her until after the accident; and their evidence in this regard was materially strengthened by that of the young man, Smith, who stated that when the plaintiff asked him to show her to the elevator he was not in the office, but in the adjoining shop or packing room. We are of the opinion, therefore, that the evidence upon this branch of the case, taken as a whole, is insufficient to establish either knowledge or consent on the part of the defendant.

As regards the question of custom, the plaintiff’s case is still weaker. But two witnesses aside from Mr. Hutchinson and Mr. Smith testified that they ever rode in the elevator prior to the accident. One of these was a stenographer in the employ of Mr. Hutchinson who said that she and her coemployees usually went up by the stairway, but that on one occasion she did use the elevator, and her recollection was that she did so by permission of Smith, the packing clerk. The other witness was also an employee and a sister of Mr. Hutchinson, who testified that she sometimes used the elevator to reach the upper room; that when she did so she operated it herself and that she was not certain that she ever used it prior to the accident. It is not shown that any of the defendant’s officers knew that either of these persons used the elevator in the manner described by them; but, on the contrary, the president and secretary both swore unequivocally that they did not, and that it was never used to their knowledge by any person other than an employee, as a means of conveyance.

Giving to this evidence, therefore, all the effect which can possibly be claimed for it, it simply proves that in one or two isolated instances there was a departure from the prescribed order of business in the defendant’s establishment; but that the same was never brought to the attention or knowledge of the defendant’s officers. This certainly does not go far towards establishing a custom, if indeed it can be said to have any tendency in that direction; for in order to charge the master with liability for the unauthorized acts of his servant, it must be shown that he- either had actual notice of such acts,_or else that they were committed so frequently and under such circumstances as to justify the presumption of notice.

In our view of the case no error was committed by the trial court in granting a new trial, and,- consequently, the order appealed from should be affirmed.

All concurred.

Order affirmed, with costs.  