The only witnesses to the accident seem to have been Greco, the plaintiff, who was hurt, and Canepa, his friend, who was showing him how to work at the machine where he was hurt. The defendant- employed Greco, the plaintiff, at the solicitation of Canepa, who was delegated by the defendant’s superintendent to show Greco how to run the machine.
Both Greco and Canepa testified that Greco was cleaning out the machine with his fingers; that Canepa asked him whether he had finished; that Greco replied that he had not; that thereupon Canepa turned the lever which set the machine in motion, and cut off Greco’s fingers. There is no claim that Canepa did not hear the plaintiff’s answer, or misunderstood. While the plaintiff had only been in this country a few mouths, he seems to. have been a countryman of Canepa, and each spoke a common language.
Canepa says that he does not know why he turned on the machine. He thinks he was nervous or confused, but he fails to point to any circumstance which made him nervous or put his mind in a state of confusion. He seems to have done just what he intended to do, namely, set the machine in motion, knowing at the time that Greco had his fingers in this place of danger; at least, that is what he testifies to.
I am not convinced that we have a full and accurate statement of just how this accident occurred. At all events, I think the testimony is so inherently improbable that we are not required to *804believe it. But assuming it to be. true, was that act, under the circumstances, an act of instruction or in any way connected with the instruction which Canepa was giving to Greco,? I think not. It does not appear that he was at that time telling him or showing him how to operate the machine, or doing anything which would aid Greco in operating the machine. These two men had worked' together for two or three hours at this machine.' It was not á complicated machine; its operation was- quite simple. The machine had stopped. The plaintiff was cleaning it out, and I do" not see how the act of Canepa in setting the machine in motion can be regarded as a part of the instruction he was giving Greco.
I do not think it is the law that the master is liable for every negligent act of the instructor occurring between the commencemeht and ending of the instruction. It is the character of the act rather than the position which the negligent person occupies that determines the liability of the master. This rule was finally settled in Crispin v. Babbitt (81 N. Y. 516), and has been adhered to ever since, except as it has been modified'by statutes like the Employers’ Liability Act. But that, I think,, has not extended "the employers’ liability so as to include every negligent act of an instructor, irrespective of whether or not it is connected with, that duty.
McLennan, P. J., concurred.
Judgment and order affirmed, with costs.