February Term, 1897.
Alex. Thain, for the appellant.
Sumner B. Stiles and Francis L. Wellman, for the respondent.
The crucial question here is as to the defendant's responsibility for the particular acts of negligence alleged to have been committed by Paxter, the man in charge of his elevator. The defendant was not notified of the arrangement made between the plaintiff and Paxter, nor was it shown that he was aware of the use to which the elevator was being put under that arrangement. There was, in fact, no proof that he ever assented, expressly or impliedly, to that use. The question, then, is, was that use within the scope of Paxter's authority? We think not. Paxter was the defendant's servant to operate the elevator for the service of the hotel and its guests. Whatever was necessary or proper for that service was within his authority. But there his authority ceased. It was limited to the appropriate use. He was not authorized to depart from his defined function, nor to operate the elevator in a direction foreign to its proper purpose. Here he permitted the plaintiff to utilize this elevator as a species of scaffold upon which to do his work. This work was not done under the defendant's direction. It was work which the plaintiff did, primarily, for one Craig, a carpenter, and it was incident to the putting into the hotel of a refrigerating machine by a firm in Buffalo. The elevator was not placed where it was, nor was it intended to be used, for any such purpose as that to which it was here applied. Paxter's act, in permitting that use, was entirely outside the scope of his employment as elevator man of the hotel. He thus diverted the elevator from its normal and legitimate use, and put it to a use which was not contemplated either in its construction or operation, or in his employment with regard thereto. It follows that Paxter's negligence was his own, and not the defendant's.
The judgment and order denying the defendant's motion for a new trial should, therefore, be reversed, and a new trial ordered, with costs to the appellant to abide the event.
VAN BRUNT, P.J., RUMSEY, WILLIAMS and PATTERSON, JJ., concurred.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.