This is an action of tort wherein the plaintiff seeks to recover compensation for personal injuries sustained by him while traveling upon Thomas street a public way in Worcester from being hit by an iron washer which came through a window of a building nearby occupied by the defendant. The decisive question is whether there was any evidence to warrant a finding that the washer came through the window by reason of any act of negligence for which the defendant was responsible.

There was testimony that the plaintiff did not see the washer until it hit him when he saw it on the sidewalk. He then turned looked into the window and saw one Williamson within the building four or five feet from an upright drill; that he had some talk with Williamson who said: 'Excuse me; it is an accident. It got away from me.' 'He [Williamson] said it was an accident and he didn't consider himself to blame for it.' In substance this testimony as to the conversation was repeated in the examination of Williamson himself. Such testimony was incompetent as against the defendant the making of statements of that nature plainly not being within the scope of the authority of Williamson (McNicholas v. N. E. Tel. & Tel. Co. 196 Mass. 138 143 81 N. E. 889; Hathaway v. Congregation Ohab Shalom 216 Mass. 539 544 104 N. E. 379); but having been admitted without objection it was entitled to its probative force (Hubbard v. Allyn 200 Mass. 166 171 86 N. E. 356). There is no indication in this statement however that this act occurred as a part of the master's business or that it was negligent.

The testimony of Williamson who was a witness at the trial was to the effect that he threw the washer to attract the attention of a friend who was passing on the opposite side of the street and not for any purpose of his employment. The Court rightly instructed the jury that if they believed his testimony they must find for the defendant. But since they might have disbelieved this testimony or that part of it favorable to the defendant (Commonwealth v. Russ 232 Mass. 58 70 122 N. E. 176) the case must be considered in its other aspects most favorable to the plaintiff. Williamson was a machinist in the employ of the defendant. His work at the time in question was on a drill. He was standing at a bench where the tools were and 'where all the washers were.' 'The washers were on a nail on the wall.' The only testimony as to the use made of the washers was to the effect that they were bolted to the drill table. There is nothing in the record to show that Williamson in the course of his employment made or was required to make any use of the washers. The general manager of the defendant testified amongst other matters that there were damaged and worn-out washers in the shop and that these were put into the scrap; that he could not tell whether sometimes employees of the defendant threw them out the window; that he did not care if they did so long as he was not hit; that he supposed sometimes they threw things out of the window and that he would not discharge an employee 'for anything like that.' There was no evidence tending to show that any washer had actually ever been thrown into the street before or that that was a customary disposition of them by the employees of the defendant or that the one which hit the plaintiff was broken disused or worn or that Williamson in the course of his employment had anything to do with washers.

The rule of law governing the responsibility of a master for the act of his servant has been stated frequently. The master is liable for an injury done to a third person by the servant acting within the scope of his employment for the purpose of executing his orders and doing his work but not when the servant disregarding either momentarily or for a longer period the object of his employment and not pursuing his duty as employee executes a design of his own. If the act of the servant is performed in the course of doing his master's work in carrying out the master's directions or in accomplishing his master's business then the latter will be answerable whether the wrong be merely negligent or wanton and reckless. Howe v. Newmarch 12 Allen 49; Levi v. Brooks 121 Mass. 501; Robinson v. Doe 224 Mass. 319 112 N. E. 1007.

The responsibility of common carriers to their passengers for acts of their servants in the course of their employment is more stringent. That rests however upon the high degree of care and diligence imposed upon common carriers with respect to those whom they undertake to transport. Hayne v. Union St. Ry. Co. 189 Mass. 551 76 N. E. 219 3 L. R. A. (N. S.) 605 109 Am. St. Rep. 655; Jackson v. Old Colony St. Ry. Co. 206 Mass. 477 92 N. E. 725 30 L. R. A. (N. S.) 1046 19 Ann. Cas. 615. A different rule obtains in some other cases where the plaintiff and defendant are under contractual relations to each other and the tort for which action is brought is founded on a breach of contract. Vannah v. Hart Private Hospital 228 Mass. 132 117 N. E. 328 L. R. A. 1918A 1157. The plaintiff and defendant in the case at bar were strangers to each other and their respective rights and liabilities depend upon the law of torts wholly unaffected by any contract.

Guided by these principles we are unable to discover in this record evidence of negligence for which the defendant is liable. The most that could have been found is that the washer which injured he plaintiff came out of the window of the defendant's building by the act of one of its employees without any indication whatever that this was an act done in furtherance of the defendant's business.

The case falls within the class illustrated by Bowler v. O'Connell 162 Mass. 319 38 N. E. 498 27 L. R. A. 173 44 Am. St. Rep. 359; Brown v. Boston Ice Co. 178 Mass. 108 59 N. E. 644 86 Am. St. Rep. 469; Wadsworth v. Boston Elevated Ry. 182 Mass. 572 66 N. E. 421; Fairbanks v. Boston Storage Warehouse Co. 189 Mass. 419 75 N. E. 737 13 L. R. A. (N. S.) 422 109 Am. St. Rep. 646; Berry v. Boston Elev. Ry. 188 Mass. 536 74 N. E. 933; Saxe v. Walworth Mfg. Co. 191 Mass. 338 77 N. E. 883 114 Am. St. Rep. 613; Lamanna v. American Express Co. 230 Mass. 564 120 N. E. 30; Gunning v. King 229 Mass. 177 118 N. E. 233 and like decisions. It is distinguishable from Hankinson v. Lynn Gas Co. 175 Mass. 271 56 N. E. 604 where there was ample evidence that the custom of the employee of the defendant inferably well known to and sanctioned by it was to drop or toss disused pieces of carbon into the street.

The request of the defendant that a verdict be directed in its favor ought to have been granted. In accordance with the terms of the report let the entry be:

Judgment for defendant.