70 N.Y. 171 | NY | 1877
The plaintiff’s intestate was a car repairer in the employment of the defendant at their freight depot at Suspension Bridge, and the injuries which caused his death were received while engaged in that capacity in the freight yard of the defendant. When the cars came in on the road in conformity with the usual practice, they were placed on a track known as the repair track for inspection, and there examined, and if proved to be out of repair were put in order. This was done on the track, unless the" defect was of such a nature as to render it necessary to send the cars to the
Recent adjudications in this State have gone very far toward settling the law as to the liability of railroad corporations for injuries occasioned to employees engaged in the service of these corporations, occasioned by the negligence of their fellow servants. The duty and implied contract of the corporation with its servants is, that it will furnish proper machinery or other materials and appliances necessary for the work to be performed, and shall employ competent and skilful fellow servants, and shall use reasonable care to that end. This duty necessarily implies that a sufficient number of workmen shall be engaged, and that those occupying • positions over others shall be qualified, competent and skilful, and see that their subordinates attend to and perform the duty devolving upon them. Where there is a general agent or superintendent having the management or control of any particular department or branch of the business, such agent or officer takes the place of the .corporation, and any neglect or omission of duty in respect to his employees, is the act of the master for which the latter is responsible. (Laning v. The N. Y. C. R. R. Co., 49 N. Y., 533; Flike v. The B. & A. R. R. Co., 53 N. Y., 549.)
No claim is made that a sufficient number of men were . not employed, and that they were not competent and well qualified to discharge their respective duties, but the negligence imputed is that a sufficient number of brakemen were not on the detached train engaged in the work of running it from the repair track, and in distributing the cars, and that none was at the rear end of the train. Had a brakeman been stationed at the end of the moving train, he would perhaps have been effective in arresting the train and thus prevented the accident. Whether the omission to station the required number of brakemen upon the cars detached, and one in the rear, was negligent is the question to be determined. It does
The case considered is far different from that of a superintendent who is responsible for the employment of prudent, ■ safe and reliable men, or of a head conductor whose duty it was to supply the necessary men for the management of a regular train and to see that they were on hand at the proper time.
If we are right in the views indicated, the judge erred in denying the motion for a nonsuit, and for this error, without considering other questions raised, the judgment must be reversed and a new trial granted with costs to abide the event.
All concur, except Chtjkch, Ch. J., dissenting, and Allen,, J., taking no part.
Judgment reversed.