
    Charles Clark, Resp’t, v. Herman Koehler et al., App’lts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed 1887.)
    
    1. Master and servant—Negligence on part of servant—Extent of master’s liability.
    This action was brought to recover for injuries, which were received by the negligence of the servant of the defendant. At the time the injuries were received the plaintiff was engaged in repairing telegraph wires, and for that purpose was on the top of a telegraph pole, and standing in the position for “ tying in” with his left leg over the cross-arm, and his right knee under it in such a position as to steady him as his hands and arms were reserved for handling the wires when stretched by his companions in the street below. While in this position a servant of the defendant, who was driving a wagon in the street, allowed his vehicle to run against the wire, which tightened it, and though told to stop, whipped up his horses and thereby caused the wire to tighten so as to injure the plaintiff. The plaintiff was restricted in his claim for damages to those arising from that which occurred after the defendant’s agent had driven against the wire, at which time he had full notice of the peril in which he was placing the plaintiff. Held, that the charge was as favorable to the defense as the facts warranted.
    2, Same—Test of master’s responsibility for act of servant.
    The test of a master’s responsibility for the acts” of his servant is, not whether such act is done according to the instruction of the master to the servant, but whether it is done in the transaction of the business that the servant is employed by the master to do.
    8. Same—Master not responsible for servant’s willful misconduct.
    A person injured by the willful misconduct of a servant, cannot recover damages of the master therefor.
    
      Townsend, Dyett & Einstein, for app’lts; Baldwin F. Straus, for resp’t.
   Pratt, J.

This is an appeal from a judgment in'favor of the plaintiff entered upon a verdict.

It seems that the plaintiff was a lineman employed in the telegraph bureau of the fire department of the city of Brooklyn. At the time of the accident he was engaged in repairing the telegraph wires, and for that purpose was on the top of a telegraph pole and was standing in the position for “tying in,” with his left leg over the cross-arm and his right knee under the cross-arm in a bent position so as to steady himself, as his hands and arms were reserved for handling the wires when stretched by his companions in. the street below.

It appears that while he was in this position a servant of the defendant, who was driving a wagon in the street, allowed his vehicle to run against the wire, which tightened it, and, although told to stop, he whipped up his horses- and caused the wire to so tighten upon the plaintiff, whereby he was injured.

The plaintiff was restricted in his claim for negligence to-what occurred after the defendant’s agent had driven against the wire; the defendant’s servant then had full notice of the peril in which he was putting the plaintiff, but still he refused to stop, and persisted in driving on, and thus injured the plaintiff.

The charge was quite as favorable to the defense as the facts warranted. The testimony showed that the driver was reckless in a marked degree.

The defense make the point that the driver having refused to stop after he was told to do so; his conduct must be regarded as willful, and, hence, his employer is' not liable.

It is clear that this case does not fall within that rule. This servant had general charge and authority to manage-his team while in the street, and what he did was clearly within the scope of his employment.

The true test of the master’s responsibility for the acts of his servant is not whether such act is done according to the instructions of the master to the servant, but whether it is done in the transaction of the business that the servant is employed by the master to do.

It is a perfect answer to this part of the defendant’s case that the judge charged the jury that if they found from' the facts that the accident was caused by the willful misconduct of the driver, there could be no recovery. Cosgrove v. Ogden, 49 N. Y., 255; Stewart v. B. and C. R. R. Co., 90 id., 588.

We have examined all the exceptions taken to the charge of the judge and find no error sufficient to warrant a setting aside of the verdict. The case was properly submitted to the jury, and the evidence is sufficient to sustain their verdict.

Judgment affirmed, with costs.

Barnard, P. J., and Dykman, J., concur.  