
    John J. Casey, as Administrator, etc., of Anna L. Casey, Deceased, Respondent, v. Davis and Furber Machine Company, Appellant.
    Fourth Department,
    May 4, 1910.
    ' Master and servant — negligence — relationship must exist in respect to thé work — failure to show relationship.
    In order to charge one with the negligence of a servant it must he shown that the relation of master and servant existed between them at the time and in respect to the- work in connection with which the negligence occurred.
    Where the defendant sold a machine to the employer of the plaintiff’s intestate L and, pursuant to 'the terms of the contract, sent a man to set it up, whose wages ' were paid by the defendant and whose expenses were met by the .purchaser, and the man, without the defendant’s knowledge and contrary to its instructions, consented to set up another machine for the purchaser if .lie would let ‘ him have a person to help him in connection with the one sold by his master, and plaintiff's intestate received injuries by reason of the negligence of defendant’s employee in setting up the other machine, no recovery can be had against the defendant.
    Even though it was necessary to set up the other machine in order to test the one sold by defendant, and although it was defendant’s duty tb test its machine, it is not liable.
    Spuing, J-., dissented, with opinion.
    Appeal by the defendant, the Davis and Furber Machine Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the.county of Onondaga on the 20th day of March, 1909, upon the verdict of a jury for $4,000, and also from an order entered in said clerk’s office on the 23d day day of March, 1909, denying the defendant’s motion for a new trial made upon the minutes,
    
      Louis L. Waters, for the appellant.
    
      Frcmk O. Sargent, for the respondent.
   Kruse, J.n:

The plaintiff’s intestate was hit by an iron ball carelessly permitted to be dropped by one Clow, falling upon her head and injuring her. The ball was used in connection with a machine or appliance known as a feed, which Clow was setting up. She was an employee of the Crown Mills, working on the floor below the one where the feed was being set up. The ball fell through an opening in the floor. She brought the action in her lifetime to recover damages against the defendant, claiming that Clow was acting within the scope of defendant’s employment, and that the defendant is chargeable with Clow’s negligence. She died, and her administrator, the present plaintiff, was substituted. The plaintiff had a verdict and the defendant appeals. ■

I think, the relation of master and servant did not exist between the defendant and Clow as regards the work in connection with which it is claimed Clow was careless. The defendant had nothing to do with furnishing or setting up the feed. Tinder the contract between the defendant and the Crown Mills the defendant agreed to furnish a carding machine and to send a man to set it up, the defendant to pay hie wages and the Crown Mills his expenses. While the defendant attempted to show that it was customary for Clow, when setting up defendant’s carding machines, also to set up feeds furnished by others, that claim was finally abandoned' by the plaintiff, and the trial court charged the jury, at the request of the defendant and with the consent of plaintiff’s counsel, that there was no proof of any such custom, and .the fact is undisputed that Clow had specific instructions from the defendant not to set up feeds except when sold by the defendant. While it was the right and perhaps the duty of the defendant to test the carding machine after it was set up, Clow, who was called as a witness by. the plaintiff,finally admitted that the carding machine could'be tested without the feed, and that fact is fairly established by the evidence, although it may have been more practicable to use the feed in making the test. ■ . . .

But even if necessary to set up the feed to test the carding machine, I fail to see how the defendant can be made liable for the careless act in question any more than it could if Clow had assisted in doing work in installing the engine or any other part of the machinery necessary to furnish the power or operate the carding machine, but not connected with the setting up of the machine.

The ■ arrangement under which Clow set up the feed was. practically an exchange of work. The carder foreman of the Crown Hills asked Clow to put on the feed; Clow replied that he' would do so if he would give him a second man to do top work, so that he would lose nó time in putting it on, and the feed was set up after the men had helped him do his work in setting tip the carding machine. As Clow'testified : “And they furnished men to help me in return for putting this feed on for them . * * ' Or,' as he finally left it upon redirect examination : “And in view of the 'fact that the men helped me by shortening my work, I put it on for them. That is it. That is the way I came to put it on.”

Assuming that Clow had authority to make such' an arrangement, it is not clear even then that the defendant would be liable for the careléss act'of Clow committed while setting up the feed. (Higgins v. Western Union Telegraph Co., 156 N. Y. 75; Hallett v. N. Y. C. & H. R. R. R. Co., 167 id. 543; Samueliam v. American Tool & Machine Co., 168 Hass. 12.) ' But' as has been seen, the work of setting up the feed was done by Clow at. the request of the Crown Mills, and without the knowledge or consent of the defendant and against its positive instructions. In doing that work he was under the control and direction of the Crown Mills, not the defendant. The Crown Mills could tell him what to do and how to do it, although undoubtedly his superior knowledge and skill was relied upon. The' mere fact that he was in the general employ and pay of the defendant does not make the defendant liable for his carelessness. It must be shown that the relation of master and servant existed between the defendant and Clow at the time and in respect of the work in connection with which the negligent act of Clow was committed in order to charge the defendant with the harm done to the injured person as the result of such carelessness. In Wyllie v. Palmer (187 N. Y. 248) the following statement from Shearman and Redtield on ¡Negligence (§ 73) is quoted with approval: “ Servants who are employed and paid, by one person may, nevertheless, be ad hoc the servants of another in a particular transaction, and that, too, even where their general employer is interested in the work. * * * They may, without consulting their master, but in good faith, assist a person independently employed to do something which will benefit their master, but with which neither he nor they have any right to interfere, and in which they act entirely under the control of such other person. In none of these cases is the nominal master responsible to strangers for their acts or omissions.”

I am unable to see how any liability is established against the defendant. The judgment and order should he reversed and a new trial ordered, with costs to the appellant to abide the event.

All concurred, except Spring, J., who dissented in an opinion.

Spring, J.

(dissenting):

By the contract between the parties the carding machine must be tested by defendant’s agent. Clow testified that it could not be tested or operated without a feed. This question was put to him : With a carding machine such as you were putting in the factory of the Crown Mills upon the 17th day of January, 1907, in order to know how it would operate or run, it was necessary to put a feed on it first? * * * A. Yes.” There was evidence to the contrary, and that question of fact was submitted to the jury and has been decided adversely to the defendant. Clow, therefore, while engaged in his master’s business of setting up the machine, comprehended the necessity of attaching the feed and consequently made the connection. In doing so lie was performing his duty to his employer to install the machine and leave it in working shape. That he departed from the instructions generally, given him by liis employer does not relieve the latter from liability to the plaintiff.

Deviation by- a servant from the master’s instructions does not'-of itself .exonerate the master from responsibility for the servant’s acts. The. test is, was the employee engaged in the prosecution of his employer’s business? (Cox Shoe Mfg. Co. v. Gorsline, 63 App. Div. 517, 520; Tierney v. Syracuse, R. & N. Y. R. R. Co., 85 Hun, 146, 152; affd. on opinion below, 155 N. Y, 642; Cosgrove v. Ogden, 49 id. 255; Quinn v. Power, 87 id. 535, 537.)

Clow knew that the hole was uncovered. He was using a wrench and other implements in connecting the feed, which was a machine three feet, in length and fourteen or fifteen inches wide, weighing 300 or 400 pounds, made of iron and wood. He called the -atterition of the superintendent of the Crown Mills Company to the danger of leaving this opening; Underneath the hole was a. heavy pulley, and any implement which fell through the opening would strike the pulley, and -the impact would be likely to deflect it among the weavers at work in the room below. The iron ball which -had been loosely adjusted to- the traveler, of all implements, might be expected' to roll in this aperture as it did.

The accident does not come within those extraordinary, unforeseen occurrences which could not reasonably be anticipated or guarded against, Clow did foresee just what occurred, and it.was very easy to have closed or protected the opening against the ball or any implement falling ■ through it. Reasonable prudence and., foresight should have suggested this precaution.

The judgment should be-affirmed.

Judgment and order reversed and new trial ordered, with costs to appellant to abide event. • - .  