(dissenting):
By the contract between the parties the carding machine must be tested by defendant’s agent. Clow testified that it could not be tested or operated without a feed. This question was put to him : “ With a carding machine such as you were putting in the factory of the Crown Mills upon the 17th day of January, 1907, in order to know how it would operate or run, it was necessary to put a feed on it first? * * * A. Yes.” There was evidence to the contrary, and that question of fact was submitted to the jury and has been decided adversely to the defendant. Clow, therefore, while engaged *400in his master’s business of setting up the machine, comprehended the necessity of attaching the feed and consequently made the connection. In doing so lie was performing his duty to his employer to install the machine and leave it in working shape. That he departed from the instructions generally, given him by liis employer does not relieve the latter from liability to the plaintiff.
Deviation by- a servant from the master’s instructions does not'-of itself .exonerate the master from responsibility for the servant’s acts. The. test is, was the employee engaged in the prosecution of his employer’s business? (Cox Shoe Mfg. Co. v. Gorsline, 63 App. Div. 517, 520; Tierney v. Syracuse, R. & N. Y. R. R. Co., 85 Hun, 146, 152; affd. on opinion below, 155 N. Y, 642; Cosgrove v. Ogden, 49 id. 255; Quinn v. Power, 87 id. 535, 537.)
Clow knew that the hole was uncovered. He was using a wrench and other implements in connecting the feed, which was a machine three feet, in length and fourteen or fifteen inches wide, weighing 300 or 400 pounds, made of iron and wood. He called the -atterition of the superintendent of the Crown Mills Company to the danger of leaving this opening; Underneath the hole was a. heavy pulley, and any implement which fell through the opening would strike the pulley, and -the impact would be likely to deflect it among the weavers at work in the room below. The iron ball which -had been loosely adjusted to- the traveler, of all implements, might be expected' to roll in this aperture as it did.
The accident does not come within those extraordinary, unforeseen occurrences which could not reasonably be anticipated or guarded against, Clow did foresee just what occurred, and it.was very easy to have closed or protected the opening against the ball or any implement falling ■ through it. Reasonable prudence and., foresight should have suggested this precaution.
The judgment should be-affirmed.
Judgment and order reversed and new trial ordered, with costs to appellant to abide event. • - .