The action is brought to recover for the death of plaintiff's intestate caused by the alleged negligence of the defendant's servant. The circumstances of the accident are these: The deceased was employed in a woolen mill. The corporation owning and operating the mill had purchased from the defendant a carding machine which, as testified by the president of the corporation, the defendant agreed to set up and start. The carding machine consisted of three cylinders *Page 27 or rollers over which successively the wool was passed. Automatic feeds were used to feed the stock to the rollers. In this case the feeds were not bought of the defendant, nor was it claimed that the defendant was under any obligation to install them. The defendant did send an employee, one Clow, who, with some assistance from the millhands, set up the carding machine. The feeds were set up by the millhands with some assistance from Clow. After the machine had been erected in its place and secured to the floor it was necessary to adjust it and for this purpose to test it by operation. Clow, when starting on this work, observed that an iron ball on the feed was not properly secured, sought to correct this, and while so doing the ball dropped, and, falling through a hole in the floor, struck the deceased, who was on a lower story, inflicting the injuries from which it is claimed she subsequently died.
There is but one question presented on this appeal (the complaint having been dismissed at the close of the plaintiff's case): Was Clow in doing the work in which he let the ball drop, acting as the servant of the defendant? The question is a close one, but we think it should not have been decided by the court as a matter of law, but submitted to the jury as one of fact. The defendant paid Clow his wages during the whole time of his work at the mill, but the mill company paid Clow's other expenses. This, however, is not conclusive on the question, because a servant in the general service of one master may in the performance of a particular act be the servant of another. (Wyllie v. Palmer, 137 N.Y. 248.) Nor is there anything in the argument that if Clow was not the servant of the mill company, he must have been the servant of the defendant. He may have been the servant of neither, though his intention was to serve both. The liability of the defendant depends on the scope of his employment, the intent with which he did the act, and whether, under the circumstances, the act *Page 28 was one he was justified in doing on his master's behalf. These were questions for the jury. There was evidence in the case from which the jury could have found that it was not practicable to feed by hand the roller at which the ball fell, and that the machine could not be adjusted except it was first put in operation with the wool passing through it. It must be conceded that neither the defendant nor Clow was under any obligation to remedy any defect in the feed. The mill company could have been called upon to do that work, and had it refused to do it, this would have relieved the defendant from any obligation to adjust the machine. But to call upon the mill company might have taken time and caused delay. The work on the feed seemed trivial, though unfortunately in this case its result was serious enough. If Clow's intent in his work on the ball of the feed was to forward his master's business of adjusting the carding machine, then his master would be liable for his act, provided the act fell within the scope of his employment. (Wright Steam EngineWorks v. Lawrence Cement Co., 167 N.Y. 440.) Whether the act was within the scope of Clow's employment depends on whether, under the circumstances, it was a proper one to be done by him in furtherance of his master's interests. If the work on the feed ball was done by Clow with any other purpose than to enable him to adjust the carding machine, or if it were not necessary for that purpose, or if, under the circumstances, it was not necessary or proper for Clow to do this work himself, instead of calling upon the millhands to do it, then in any of these cases the defendant was not liable.
The judgment should be reversed and a new trial ordered, with costs to abide the event.
GRAY, CHASE and MILLER, JJ., concur; WILLARD BARTLETT and CUDDEBACK, JJ., dissent; HOGAN, J., not sitting.
Judgment reversed, etc. *Page 29