dissenting. The two issues in this cause are: (T): Was the-action of the motel’s room.clerk in allegedly *281requesting the plaintiff-guest to enter through a rear door marked. “Employees Only” within the clerk’s scope-of employment so as to hold the motel owner liable as a matter of law for plaintiff’s injuries? and (2) Did the-evidence adduced at the-trial show the plaintiff contribuí orily negligent as a. matter of law?
As to-the first issue, the fact that the act was done during the time of the servant’s employment is not conclusive, nor is the intent of the servant conclusive.-The question boils down to: Was the act done by virtue of the employment ánd.in furtherance of the master’s business? See Cooley on Torts (4 Ed.), 68-69, Section 396. In Tarlecka v. Morgan (1932), 125 Ohio St. 319, 181 N. E. 450, at page 324, this court stated:
“* *'* The act of an agent is the act of the principal within the course of the employment when the act can'fairly and reasonably be deemed to be an ordinary and natural incident or attribute of the service to be rendered * *
In order for plaintiff to ¡recover damages for his injuries under the doctrine of respondeat superior, he must prove that the relationship of master, and servant exists, between the tort-feasor and the person sought tó be charg-. ed for the neglectful or wrongful act, at the time of, and in-respect to,' the transaction out. of which the injuries arose. The servant’s alleged request to plaintiff to bring h.er a beer and enter'through a'restricted door.was not an act performed in'-the course of employment, nor could it be .considered in any way to be in furtherance of the motel’s business. Under the facts of-this case, no issue was established sufficient to be submitted to the jury. In order, to create a jury question; some evidence should have been presented indicating that the servant’s acts in this regard were of some benefit to the furtherance of the motel’s business and of its responsibility for the comfort and safety of its'guests. The source of that authority, which renders a master liable under the doctrine of respondeat superior, lies with the master and never with the servant.
Assuming, arguendo, that under the circumstances the *282question of “scope of employment” is a jury question, it is necessary to consider whether the plaintiff was contributo rily negligent as a matter of law.
From a reading of the record, plaintiff’s testimony is that he entered a door clearly marked “Employees Only,” that he found himself on a partially lighted landing intending to enter a lighted area, and that he stepped backwards into an area of total darkness, without taking any precautions for his own safety. There is no evidence to support plaintiff’s claim that the motel owner could anticipate that a guest would enter a door marked “Employees Only,” and that the guest might, without looking, step off' the landing and then fall down the stairs. Plaintiff’s motivation might have been that of a “good Samaritan” to provide liquid refreshment, but even one in such a generous and chivalrous mood has to act to protect himself from the ordinary hazards of darkness and flights of stairs.
Plaintiff’s conduct is, in my opinion, classified as contributory negligence as a matter of law because he should have anticipated the danger involved in entering the area which caused his injury. In fact, I fail to see from the record any physical condition created by the defendant corporation which could be designated as negligence proximately causing plaintiff’s injuries. The standard we are setting.for this defendant is that it must foresee that guests will enter an area plainly marked “Employees. Only,” and that it must therefore provide lights as some dubious protection for those guests who' step without looking.
I agree with the dissenting opinion filed in this case in the Court of Appeals, and I also concur with the trial judge’s action' in sustaining the defendant’s, motion for judgment notwithstanding the verdict.
0 ’Neill, C. J., concurs in the foregoing dissenting opinion. • '