I dissent from the order denying a rehearing. Aside from the more technical objections to the variance between the allegations of the complaint and facts necessary to support the verdict, it appears to me that there was serious error prejudicial to the defendant in the allowance by the court of the following instruction requested by the plaintiff:
"8. It is admitted in the pleadings in this case that on the 23d day of July, 1909, at the time of the happening of the accident to plaintiff, the defendant, P. J. Walker, was engaged in operating the elevator which came in contact with said plaintiff on said date. During the trial it was conceded that Applegarth, the person by whom this elevator was operated, was in the employ of the defendant, P. J. Walker.
"9. I charge you, therefore, that if the said Applegarth was guilty of negligence in the operation of said elevator, or in the manner in which said elevator was operated, that such negligence on the part of Applegarth was, in law, the negligence of the defendant, P. J. Walker."
"The court thereupon, at the request of the defendant instructed the jury as follows: . . .
"3. If you find that Applegarth was guilty of negligence it does not necessarily follow that this negligence should be imputed to Walker. It can only be imputed to him if Applegarth was acting within the scope of his authority." *Page 308
The conflict between these two instructions is evident, and that the latter was correct and the former erroneous follows from the fact that upon the question whether Walker had ever undertaken by himself or his superintendent to provide for the safety of the employees of the elevator company in doing their work about the elevators, or that he had any notice that they would be exposed to any danger in completing such work, there was a serious conflict in the testimony. If the only notice given was that which plaintiff testifies to giving Applegarth (as to which there is also a conflict of evidence) then Applegarth in promising to warn plaintiff was not acting "within the scope of his authority," and his negligence could not be imputed to Walker. But if the jury obeyed the first instruction that was a question they could not consider, and the defendant was necessarily prejudiced by that error.