
    Margaret Corcoran, Appellant, v. Edwin A. Holbrook et al., Respondents.
    (Argued December 17, 1874;
    decided January 19, 1875.)
    Defendants operated a cotton mill, to the management of which they gave no personal attention, but intrusted it entirely to a general agent, who had full power. In the mill was an elevator, used by the employes in passing. from one floor to another. This elevator became out of repair and unsafe, of which said agent had notice. He neglected to repair, and plaintiff, an employe, using the elevator in the course of her work, was injured by its fall. Held, that defendants were liable; that the general agent was not a mere fellow-servant, but occupied the place of the master; that the latter could not, by thus delegating their authority and absenting themselves, escape from liability for the nonperformance of the duties they owed to their employes.
    The rule, that where a master or principal delegates to an agent the performance of duties he owes to his employes, the former is liable for the manner in which they are performed, is applicable as well to individuals as to corporations.
    Appeal from an order of the General Term of the Supreme Court, in the third judicial department, reversing a judgment in favor of plaintiff, entered on the report of a referee, and granting a new trial.
    
      This action was brought to recover damages, for injuries sustained hy plaintiff in consequence of the fall of an elevator in defendants’ mill, in which plaintiff was an employe.
    The referee found the following -facts: That defendants were copartners in the business of operating a cotton mill, located in the city of Troy; they were also doing business as merchants in Hew York city, where they resided; they gave no personal attention to the conducting of the mill, but it was managed by a general agent, having general charge thereof, its machinery and operations, with power to purchase supplies, etc. In the mill was an elevator, elevated and lowered by a chain passing over a drum in the garret. The elevator was designed for elevating goods, but for many years the superintendents, bosses and employes had been accustomed to ride thereon, from one floor to another, while engaged in their work, to the knowledge of the superiors and bosses. Plaintiff was an employe in the mill, and had been accustomed so to ride. Some of the links of the chain had worn thin, and thereby rendered the elevator dangerous and unsafe. This had been known by the agent for three weeks prior to the accident in question, and he was notified that if the chain was not repaired, some of the employes would get hurt. Plaintiff had no knowledge of the defect. On the 17th February, 1870, and while at work in the mill, plaintiff was sent to a room above that where she worked. She took the elevator, and while ascending, the chain broke, the elevator fell, and she was injured.
    As conclusions of law, the referee found that notice to the general agent was notice to the defendants, who were chargeable with his negligence; that plaintiff was not guilty of any contributory negligence, and that defendants were liable for the damages sustained by plaintiff.
    
      R. A. Parmenter for the appellant.
    Defendants were liable to plaintiff for non-performance of the duty they owed to her, even if they did not have notice of such non-performance. (Laning v. N. Y. C. R. R. Co., 49 N. Y., 521; 
      Brickner v. N. Y. C. R. R. Co., id., 672; Flike v. B. and A. R. R. Co., 53 id., 549; Holmes v. Clark, 10 Wend., 405; Hoey v. D. and B. R. R. Co., 18 id., 930.) Defendants were clearly guilty of negligence and omission of duty. (Hoffman v. N. Y. C. R. R. Co., 55 N. Y., 608; Laning v. N. Y. C. R. R. Co., 49 id., 521; Keegan v. West. R. R. Co., 8 id., 175; Noyes v. Smith, 28 Vt., 59; Ford v. Fitch. R. R. Co., A. L. J., Nov. 28, 1874, p. 343.)
    
      Irving Browne for the respondents.
    The negligence of defendants’ agent was not to be imputed to them, and notice to the agent was not notice to defendants. (Faulkner v. Erie R. Co., 49 Barb., 328; Keegan v. West. R. R. Co., 8 N. Y., 181; Seymour v. Maddox, 16 Q. B., 326; Wigmore v. Jay, 5 Exch., 354; Searle v. Lindsay, 11 C. B. [N. S.], 429; Gallagher v. Piper, 16 id., 669; Hall v. Johnson, L. J. [N. S.] [Exch.], 222; Feltham v. Eng, 7 B. & S., 676; Wilson v. Merry, a. d. 1868, H. of Lds.; Albro v. Aga; Canal Co., 6 Cush., 75; Hart v. Vt. and C. R. R. Co., 32 Vt., 473; Wright v. N. Y. C. R. R. Co., 25 N. Y., 562; Warner v. Erie R. Co., 39 id., 468.) Plaintiff being on the elevator without authority was guilty of contributory negligence. (Russell v. H. R. R. R. Co., 17 N. Y., 137; Sprong v. B. and A. R. R. Co., 60 Barb., 30; Dougan v. Champ. Tr. Co., 6 Lans., 430; Spooner v. Brooklyn City R. R. Co., 31 Barb., 419; Nicholson v. Erie R. Co., 41 N. Y., 525.) The fact that plaintiff and others were in the habit of riding on the elevator cannot fix liability on defendants. (Fitch v. Allen, 98 Mass., 572; Stewart v. Har. College, 12 Al., 58.)
   Rapallo, J.

The reversal of the judgment entered upon the report of the referee was upon questions of law only. The facts found by the referee must therefore be taken as established. From these findings it appears that for upward of thirty years the elevator in question had been customarily used by the superintendents, bosses and employes of the mill for the purpose of riding from one floor to another of the mill while engaged in work there, and this to the knowledge of their superiors and bosses, and that the plaintiff had been accustomed so to ride. The right of the plaintiff to use the elevator to pass to the upper floor is conceded in the opinion of the Supreme Court, and the conclusion of the referee that sin was not guilty of any negligence in so doing is undisturbed. The sole ground of reversal was that the defendants were not liable for the negligence of their general agent in omitting to repair the broken chain, after notice to him that it was unsafe and that unless repaired some of the employes would get hurt.

The defendants, who operated the mill at the time of the injury, gave no personal attention to conducting the mill, but it was managed by a general agent who had general charge of the mill, machinery and operatives, with power to purchase all supplies and hire and discharge operatives.

It is evident that this general agent was not a mere fellow-servant of the plaintiff, who was a common hand in the mill, but that he was charged with the performance of the duties which the defendants owed to the hands employed in the mill. There was no other person to disehage those duties, and the defendants could not, by absenting themselves from the mill and refraining from giving any personal attention to its conduct, but committing the entire charge of it to an agent, exon-. erate themselves from those duties, or from the consequences of a failure to perform them.

It was the duty of the defendants toward their employes to keep the elevator in a safe condition and to repair any injury to it which would endanger the lives or limbs of their employes who were lawfully and properly and in the performance of their functions in the habit of using it. That duty they delegated to their general agent. As to acts which a master or principal is bound as such to perform toward his employes, if he delegates the 'performance of them to an • agent, the agent occupies the place of the master, and the latter is deemed present, and liable for the manner in which they are performed. (Flike v. Boston and Albany R. R. Co., 53 N. Y., 519.) This rule is as applicable to individuals as to corporations, and requires us to sustain the conclusion of the referee, that the defendants were responsible for the neglect, of their general agent, he having the means and power, to keep the elevator in repair, and that notice to such general agent was notice to the defendants that the elevator was out of repair and the defendants were consequently guilty of gross negligence in omitting to repair it.

The order of the General Term should be reversed and the judgment entered upon the report of the referee affirmed with costs.

All concur.

Order reversed and judgment accordingly.  