Maurice P. Jossaers, Respondent, v. Alva S. Walker, Appellant

Maurice P. Jossaers, Respondent, v. Alva S. Walker, Appellant. Negligence — elevator man in a hotel — allowing a workman of an independent contractor' to use the elevator as a scaffold, — hotel proprietor not liable for an injury. A servam who is running an elevator in a hotel is not acting within the scope of his employment in permitting the workman of an independent contractor, who is working in the elevator shaft, to stand upon the top of the elevator in order to use it as a species of scaffold. The proprietor of the hotel is not liable to the workman because of injuries sustained by him by reason of the failure of the elevator man, under such circumstances, to notify the workman that he was about to start the elevator. Appeal by the defendant, Alva S. Walker, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county.of New York on the 15th day of December, 1896, upon the verdict of a jury, and also from an order bearing date the 11th day of December, 1896, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.. The action was brought to recover for injuries received by the plaintiff oh April 9, 1894, alleged to have been caused by the negligence of the defendant. The defendant is the owner of a hotel in the city of Hew York, known as the Hotel Beresford, into which a Buffalo firm was putting a refrigerating plant. The plaintiff’s employer, one Craig, a carpenter, sent him to the building upon the day in question in order to do certain work in and about the elevator shaft of the hotel, which work was incident to the putting in of the refrigerating plant. He made an arrangement with the defendant’s elevator man whereby he was permitted to get upon the top of the elevator, and the latter notified him when he ivas about to move it up or down. The elevator mail neglected to so notify him upon one occasion, and the sudden starting of the elevator caused the injuries for which the plaintiff seeks to recover. Further facts are stated in the opinion. Alex. Thain, for the appellant. Sumner JB. Stiles and Frwiieis L. Wellmwn, for- the respondent. [MAJORITY — Barrett, J.:] Barrett, J.: 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 Baxter, 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 Baxter’s authority? We think not. Baxter 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. Baxter’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 Baxter’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.