JEWETT, J.
This was an action brought to recover a compensation, in damages, for an injury resulting to the plaintiff, as is alleged in the declaration, by the negligent conduct of the defendants personally, and also of their agent or servant, in lowering a box from an upper story on the outside of their store, to the pavement of the side walk in River-street, a public highway, in the city of Troy, in November, 1845. There is no question made, nor could there be with any propriety, but that every man is answerable for injuries occasioned by his own personal negligence; and also civiliter for acts done by the negligence of those whom the law denominates his servants, because such servants represent the master himself and their acts stand upon the same footing as his own. It is not pretended that the action was sustained for any act proved to have been done by the defendants personally. But it is contended that it was sustained on the ground that the porter, while engaged in lowering the box, was the agent or servant of the defendants, and that from his negligence in that particular business the injury complained of resulted, and upon that ground the defendants were liable to make good the damages.
The evidence showed that the defendants were merchants at the time the plaintiff received the injury complained of, in the city of Troy, occupying a store on River-street. That on that day one of the clerks of Messrs. E. D.B. Plum came to the defendants' store and wished to purchase a box, described, and on being told by the defendants that they did not think that they had any, he requested permission to go up to the upper loft or story of the store and ascertain if there was any which would suit him. Permission being given, the clerk went up and found a box which suited him, and on returning so reported to the defendants, and then purchased and paid for it, and told them that he would send their (the Plums',) porter for it, which he did. The porter came and went up into the loft of the defendants' store where the box was, to get it, and then hallooed to hoist the fall, which was on the outside and in front of the store. Upon which one Mahony being present, took hold and hoisted it up; the porter took the hooks and hooked to the box by the ends and called to Mahony to hoist, which he did, and the box swung out; he then called to Mahony to lower, and shut the door when the box came out. While Mahony had hold of the rope, the box struck against the middle roller, which knocked it out of the hooks, and it fell. Just at this time the plaintiff was passing on the side walk, and stopping near the threshold of the store door, in that position, the box in falling struck him violently on the head, doing him a severe injury.
The evidence being closed, the counsel for the defendants insisted that they were not answerable for the injury, on the ground, that neither Mahony, nor the porter, was at the time in the employ or under the direction of the defendants, and that they were neither present nor acting in the matter; and requested the judge holding the circuit to charge the jury, that inasmuch as there was no proof to show that the defendants gave directions to lower the box by the fall, or in any other manner, or that either of the persons engaged in lowering the box was in the defendants' employ, or acted with the knowledge or consent or under the direction of the defendants, there was no evidence of negligence on their part, to charge them with the consequences of the injury, and that it was not incumbent on them to prove that they exercised care, until negligence or carelessness should be proved. The judge refused so to charge, to which an exception was taken.
The judge charged the jury, that, to entitle the plaintiff to recover, they must be satisfied that there was, under the circumstances of the case, a want of proper care in letting down the box, in the manner it was proved to have been done, and also that the defendants were chargeable with such carelessness: that both were questions of fact for the jury to determine; that if satisfied that the injury had been occasioned through a want of proper care, the next question would be, whether the defendants were chargeable; and in respect to that question, if they should find from the evidence that the porter went into the loft of the store to get down the box, with the knowledge or permission of the defendants, he so far became their agent and servant, while engaged in that business, as to render them liable for the consequences of his carelessness; to which the defendants excepted.
There is no question, but that the party who actually did the injury complained of, was the porter; and unless the relation of master and servant existed between him and the defendants, at the time, the act of the former, however careless, could not create any liability in the latter. The correctness of this principle was apparently recognized by the judge in his charge to the jury; for he stated to them what facts if found from the evidence, would, for the time being, constitute that relation between the defendants and the porter, and the consequences which would legally follow; and the material question to be determined, is, whether the judge did or not err, in charging the jury on that point, as matter of law, that if the defendants knew that the porter went, or permitted him to go into the loft of their store to get the box down, it would constitute him their agent and servant, while so engaged, so far as to render them liable for the consequences of his carelessness in getting the box down.
The defendants had sold to the Messrs. Plum the box in question in the loft, to be sent for and removed by their porter from the loft for them. The defendants were under no obligation under the circumstances to lower the box from the loft to the street, for the purchasers; nor is there any evidence that they assumed to do it. They knew that the porter of Plum had come to take the box away, and consented that he might go into the loft of their store where it was, to enable him to discharge his duty to his employers in that respect. The defendants did not employ the porter to do the act, in point of fact, nor did he assume to act as their agent or servant, in that respect, but as the servant of Plum, in whose service in fact and in law he was. The defendants could not be rendered liable for the negligent acts of the porter by virtue of the principles applicable to the relation of master and servant, unless that relation in fact subsisted. Knowing and permitting the porter to go into the loft to get the box, being in fact at the time the servant of Plum, and actually acting in his employment, did not constitute the porter in any degree the agent or servant of the defendants while engaged in removing the box. The relation of master and servant cannot be created, but by contract express or implied between the master and servant.
The defendants, therefore, without evidence of such relation subsisting between them and the porter, could not upon any principle, be rendered liable for the consequences of his negligent acts while so engaged. In that respect I think it quite clear that the judge erred in his charge to the jury; and I also think that the exception to his refusal to charge as requested was well taken. The proposition requested to be charged was obviously correct. ( Laugher v. Pointer, 5 Barn. Cres. 547; Quarman v. Burnett, 6 Mees. Welsb, 499; Milligan v. Wedge, 12 Adol. Ellis, 737; Story's Ag. §§ 452, 453, 456; Rapson v. Cubitt, 9 Mees. Welsb. 710; Sproul v. Hemmingway, 14 Pick. 1; Reeve's Dom. Rel. 310.)
The judgment should be reversed and a new trial granted, costs to abide the event.
RUGGLES, Ch. J., and GARDINER, JOHNSON, EDMONDS and WELLES, JS., concurred in the foregoing opinion. WATSON, J. expressed an opinion in favor of affirming the judgment. GRIDLEY, J. was absent.
Judgment reversed.
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