*1 Crispin [Sept.. v. Babbitt. of Statement case. Benjamin T. Babbitt, Respondent,
George Crispin, Appellant. employe, a for an to an injury of occasioned master employe, depend grade not of another on the rank of does act, latter, upon performance character of which but arises. servants, duty If to the the master owes pertaining the act is one performance ; of its but if resposible to for the manner the act them operative, performing of an pertaining only servant, it, title, is a mere and the his rank or is not whatever (Earl, performance. improper for its Dan- ato fellow-servant liable Finch, JJ., dissenting.) forth and damages alleged to have In recover been an action to occasioned defend- a appeared employed was laborer negligence, ant’s works, show, which, plaintiff’s iron as evidence tended to defendant’s B., of one management and control defendant' under the himself located, only place where the works were And living not occasion- accident, plaintiff time visiting was At at work ally them. let on injured. steam engine, an when B. near B., superintendent, as repre- charged that The court only he did in respect stood sented had confided him defendant as such. Defendant's duties those requested charge, the further as to acts then counsel business, B., in and works or performed by about defendant’s duties aas regarded representative, as but fellow-ser- not to defendant’s be. ques- left it a plaintiff. charge, but as with This the court -refused vont Finch, JJ., (Earl, Danforth jury. fact to the dissent- Held tion law, and have question the court should it was ing) error requested. charged refused, charge that in on the letting requested, court (Earl, Danforth place. acting in defendant’s Held B. was steam Finch, JJ., dissenting) error. 2, 21, 1880.) September 1880;decided June
(Argued Term the of the General Appeal Supreme judgment Court, in the fourth affirming department, judgment judicial verdict, entered affirming favor plaintiff, for a trial. new motion order denying to recover al- damages This action brought defendant’s been sustained negligence. leged have Cbispiít Statement case.
At the time of the accident, was as a plaintiff working "Whitesboro, in the iron works of the at defendant, laborer Plaintiff had a Oneida assisted draw boat into a county. with the in the dock connected after the was works; boat
dry was became the this dock, out water; dry necessary pump a means worked an done While pump, by engine. plaint- others, with was wheel iff, engaged lifting fly off its one L. John let center, Babbitt engine on and started the wheel, the steam plaintiff throwing and thus wheels, com- gearing occasioning of. Defendant lived Hew plained York, city coming two, for or month, works, about once the iron ot day as the evidence tended to said which, show, Babbitt had general at time charge; being general superintendent at time another the “business and financial manager, styled man.” The substance of as to the evidence, position occupied and the as to Babbitt, accident, set particulars fully forth in J. The opinion defendant’s dissenting Eael, the court counsel requested as charge, among things, follows: L. “13th. That John Babbitt as financial may, overseer, have superintendent, manager, repre-
sented and stood in his defendant he did so place, only of those duties which the defendant had confided respect him as such overseer or superintendent, agent, manager.”
The court so charged. “ 14tli. That as to other acts or duties him performed by in or defendant’s about the works -at or in or about Whitesboro, business at defendant’s said is not to be works, regarded as defendant’s in his representative, but as place, standing or servant as a fellow-servant defendant, of the plaintiff.” “ refused The court so I leave that will charge, saying: of fact for the question jury.” That if John L. 17th. did let on steam Babbitt while at the act- wheel, not, in so engaged doing, Cbispik" v. [Sept. of case.
Statement defendant’s his act in but was his place, ing doing apd act, own the defendant.” refused so to this court charge, leaving jury. refusals to defendant’s To the counsel charge, duly excepted. A. J. Prima John L. Vanderpoel appellant. facie were the onus of re fellow-servants, Babbitt this evidence inference, by not, they butting What actual was conferred authority upon plaintiff. L. affirma Babbitt, part plaintiff’s 11 Irish L. 345, tive case. C. (Conway Railway, Belfast *3 evidence did not show that he had 353.) authority with defendant reference control of the men from establishment, the work made him and of 5-9; v. defendant’s alter 64 N. Y. ego. (Malone Hathaway, R. id. Co., 521.) v. N. Y. C. R. 49 John L. Babbitt Loring in the same not general employ, although L. 1 (Wilson v. Merry, R., relation authority. equal 326 64 N. Y. ; & Div. Malone v. Hathaway, Scotch Appeals, N. Y. C. & H. R. id. Admr., Co., 5-9 v. R. R. 70 ; Beyel, whether a The facts undisputed, person causing being 171.) as a fellow-servant with another is to be an regarded injury determination of the court. matter for the injured, person Mo. v. 308; v. 63 Albro Ca Schmeidler, Agawam (Marshall v. & R. 4 Boston Worc. 75; R., 6 Cush. Farwell Co., nal 270.) 3 There is 49 v. Western R. Cush. R., ; Metc. Hayes as to the of common from no distinction exemption his workmen for an to one of answer in conse in the same of another employment, of different classes. workmen (Conway their quence being In the 11 Irish C. L. v. & N. C. 345-353.) Ry., Belfast of one to com of servants ranks or power grades varying dismiss others, even to obligation mand, employ, first, the lawful commands of those perform others all fellow-servants. (Keilly not sufficient prevent being Co., v. Landore Steel Howells 500; v. 3 Co., Belcher Sawyer, R. R., & Q. v. Rochester Syracuse Sherman 62; 10 L. B. R., Crispís 519 v. Babbitt. Statement case. Y.N. 156 Brown v. 6 ; ;
17 592 v. Maxwell, Hill, Laming 49 N. 55 N. Y. C. R. Y. id. 521; Same, v. R., Hofnagle 608.) fails show toward the proof any negligence the nonsuit should have been part 3 Co. v. L. Jackson, R., (Metropolitan Ry. granted. Appeal Cases, v. North L. H. L. 193, 197; R., Lon. 7 Bridges Ry. Co., In actions sustained reason of incom 213.) fellow-servant, the fellow-ser petent presumption vont was not and that incompetent, negli him his v. N. Y., gent employing employment. (Wright R. R. Y. R. etc., 562; 25 N. Davis v. Detroit 20 Co., Co., The fact Mich. this accident was 105.) happening not sufficient to the defendant. v. (Albro Agawam Canal 6 v. Co., Cush. Felch 98 Mass. 75; Allen, 572; Smith 114; v. Lowell 124 id. v. Winterbottom Co., Wright, Manuf. 10 M. &W. 29 114; v. Smithville Conn. Hayden Co., Manuf. 548 Sexton v. 26 T. Hawksworth, L. R. 851.) Nicholas E. Kernan for The 'defendant was respondent. v. N. Y. C. R. R. 49 N. guilty negligence. (Laning Co., 549; Y. Flike v. B. 521; & A. R. R. 53 id. Corcoran Co., 517; v. Holbrook, 59 id. 5 ; Malone 64 id. Coombs Hathaway, Fitchburg v. New 102 Co., Mass. Ford v. Cordage 572; Bedford . id. Co., R O' et Connor Adams al., *4 R. id. v. Phila. 427; Mullen & So. M. Co., 78 Penn. Steamship St. 21 Am. 25; 2; Meham v. R. R. & B. Rep. Co., Syracuse 9 and 73 N. Hun, Y. v. D. L. W. R. R. 457, 585; & Gage Co., 14 446 v. B. Hun, ; 19 C. Smith, 361; Buck Murphy [N. S.] ner v. N. Y. 506, C. R. R. 2 Lans. affirmed this Co., court, Y. 49 N. Lalor v. R. 52 Ill. Q. B. & R. 672; Chicago, Co., v. P. & N. R. R. Penn. St. 401; Co., Patterson 76 389.) B. The act of John Babbitt steam while the turning was on the lifting fly-wheel negligence, . the direct for B. John Babbitt negligence ” “ alter Holbrook, defendant. v. ego (Corcoran Y. 59 N. Malone v. 64 517; id. Mullen v. Hathaway, 5; & Phila. So. Penn. 25 Co., M. 78 St. 21 Am. Steamship Cbispix 520 [Sept,, v. Bapallo, Opinion Court, per Berea Stone Co. v. 31 2; 287; Ohio St. Rep. Craft, Pittsb., F. &W. C. Co. v. 33 id. Lewis, 196; Ry. Wheaton’s Law of Shearman & 229,230; Redfield on ¡¡Negligence, ¡Negligence, §§ v. 102, 103, 104; Brothers 52 Cartter, Mo. v. 378; Ford §§ 110 260; R. Mass. Co., R. v. Fitchburg 240, Smith, Murphy B.C. v. 361; & N. Conway 19 C. Co., Ry. [N. S.] Belfast 9 Ir. L. T. R. It was for the 217.) jury say whether, upon in this case, evidence John L. Babbitt was the fellow-servant “ ” or the alter of the defendant. ego (Malone v. 64 N. Y. Mullen v. 11; Phila. Hathaway, 5, & So. Mail Penn. 25 ; St. 21 Am. Co., Steamship 2; F. W. Pittsb., Rep. & Co.v. Ohio St. Lewis, C. There Ry. evidence 196.) ma-, show that L. Babbitt had acted willfully ” as defendant from liciously exempt (Rounds liability. Del., v. Lack. R. & West. R. 64 N. Y. Co., Mott 129; v. Con sumers' Ice 73 id. Rexter Co., id. Starrin, 73 601.) n J. The of master to his servant liability Rapallo, sustained while or injuries employ, by wrongful act of another of the same does not employe the doctrine of depend upon resp>ondeat vperior.
If the whose is .a causes employe negligence fellow-servant the doctrine does not injured, apply. 11 Irish etc., Co., C. L. (Conway Belfast, Ry. 353.) A servant assumes all risk of incident to and occur- in the course of his such as are ring employment, except the act result of or of a himself, breach master of some either term, of the contract express implied,' or of the service, of the master to his viz.: servant, fellow-servants, safe competent etc. But employ machinery, the mere of one the master is not re- negligence employe, to another in the same service. sponsible engaged of the master does not depend upon grade rank’ of the whose causes the injury. A a em- superintendent factory, although having power men, master in other ploy represent is, *5 respects, a fellow-servant management of the other machinery, Crispin 521 v. Court, per Opinion of the Rapallo, 6Co., Carnal Cush. Con operatives. (Albro Agawam Wood’s Ry. Co., Master way supra Servant, § Belfast 438. 436, On the same See, also, 431, 437.) principle, §§ low rank however the master is grade employe, liable him another if for caused re servant, they sult the master, omission of some which he duty has confided to such inferior On this employe. principle Flike Y. Ch. (53 case N. was decided. J., 549) says, Church, “ at 553 : is The true I to hold cor rule, page apprehend, liable for such acts duties poration respect itas is as master, without to the required perform regard rank or title of the intrusted with their agent performance. As to such acts the of the corporation, agent occupies liable for the manner in which the latter is they per formed.” the master is thus made to depend upon
character of the act in the of which the performance arises, without the rank of regard employe performing it. If it is one to the the master owes pertaining duty them for he is the manner of its servants, responsible per- formance. converse of follows. proposition necessarily If the one which only pertains duty opera- is a it tive, servant, mere and the employe performing is not liable to liable to fellow- strangers, (Wood’s its servant for Master and performance. improper The citation which the court read to the Servant, 438.) jury § from Am. does conflict but sustains this 2, with, Rep. places : Where the master the entire proposition; says business in hands of an agent, neglect %n suitable instrumentalities supplying maintaining the work is a breach which the master is reguired liable.” These were In so far as masters’ duties. the casefrom which the I citation cannot this, made reconcile beyond goes it with established In late act of principles. England, by Parliament, the rules under now consideration touching point have been modified but this some State respects, has been had. legislation
Sickbls —Vol. XXXVI. *6 Crispin [Sept., Babbitt. Earl, opinion, per J.
Dissenting in case, by sharply presented present .point 13th. That 13th, to 14th and 17th requests charge. as financial over- John L. Babbitt superintendent, may, defendant, and stood seer or have represented manager, of those duties which de- did so place, respect only to him as such fendant had confided agent, superintendent, overseer or manager.
This the court charged.
14th. That as duties him acts or performed by at in and about the defendant’s works business said works, he is not to as defendant’s be regarded representative, standing of,the in his an defendant, but as servant place, fellow-servant of plaintiff. as a This the but left of fact court refused question charge, think to the counsel I this was defendant’s excepted. jury, law, and that the erred court question submitting have as but should charged requested. jury, The court was further requested specifically L. Babbitt on steam John de- letting acting think, was sound This, fendant’s I proposition, place. of a mere It the act case. applied operative present ato for which would liable but not the defendant stranger, As of the between to a fellow-servant employe. not master’s servant’s, it was and servant operate machinery. reversed. should be judgment J. This is action for alleged injuries (dissenting). received
have been plaintiff through was a time he received laborer At the defendant. injuries at in Oneida the defendant his iron works in the employment work about an and one L. He was at engine, county. Babbitt, employment thereof the steam, consequence let is that JohnL. claimed Babbitt The defense now caused. and that the defendant is not, fellow-servant plaintiff, Whether John was therefore, responsible negligence. Obispiít Eakl, opinion, per Dissenting aor of the defendant merely, a fellow-servant representative make the latter for his acts, as to such sense responsible *7 to the merits now be considered. the sole question upon person It to determine whether the is not imme always easy a to be fellow-servant diately causing regarded rules laid down in not; subject England in States of this are dis the various somewhat country its has cordant. The been so phases, subject, many treated in various decisions this court that much thoroughly is not needed. v. N. Y. C. R. thereon now writing (Laning 521; 49 53 549; N. Y. Flike v. B. & A. R. R. id. Co., Co., 608; R. v. C. & H. R. 55Co., N. Y. id. Malone v. R. R. Hofnagle id. v. N. Y. Co., 64 Besel C. & H. R. R. R. Hathaway, 70 id. These cases show the relation of one servant 171.) not another is determined the fact that one has a supe other, rior to the or has some over control other ser position vants of the or some business in hand. management To place in a servant where the master will become position responsi ble for his to other he must hae vice servants, negligence pro in the of the be and his In master, place representative. to use found some
words, must phrase books, be the alter of the master. He need all ego not, however, ha^e if would have nor all powers present, of an but he must either be powers agent; absolutely general clothed with with the general powers charged duties of the or he for the work hand at must, least, whose commands are superior whose acts obeyed, to be not other servants, and who thus questioned by for the time the master. And represents whether a ser being (cid:127) vant whose acts are such a complained occupies position other servants is of fact to be when question determined, sufficient evidence, disputed, upon (Mullan jury. and Southern Mail Penn. Philadelphia Co., Steamship 25.)
In this law case the was laid his down judge in the favorably enough defendant, following language: “If find that John L. had Babbitt the control, you standing Crispin [Sept.j Eakl, opinion, per
Dissenting had a really footsteps principal; right discharge at the duties and that took this all establish- every thing place hands, ment had it in his was, owner, owner, and the owner for the away really acting being that establishment; all the business home, generally doing into all this evidence in then will look regard neg- you Babbitt, J ohn L. whether caused ligence the injury.” is whether there was some evidence therefore,
The question, show, and to find, which authorized the fairly jury tending L. Babbitt occupied stated. the sense above at Oneida Whitesboro,
The defendant’s iron works were He lived in Hew York and carried on extensive county. *8 once a month and there.' He visited about business works .his in and about his or two. There were stayed day employed J L. of men. ohn Babbitt was his works a number nephew, large at to the and lived Whitesboro house defend- belonging he when the latter made works, ant and visited usually his home. was a When that house John engineer. practical he was of the he Whitesboro, first went to placed charge and hav- and the works was superintendent manager, general the under him. time before accident which foremen Some ing testified that one Minot the John was plaintiff, ap- injured defendant foreman of the works. the Precisely by pointed at near hand were was not shown. what his Although powers was as a witness; the he not called neither trial, at time of the is that Minot called. The claim superseded the defendant was and of the works; yet, practical management John it is Minot, John disputed absence of the temporary left the he was after Minot as control, employment inwas far as new without, appears, any delegation the all de- correspondence Substantially of authority. John, his works carried on with in reference fendant de- between the was medium communication John when the de- works, connected with and others fendant laborers, John discharged fendant was absent. employed Crispís v. Eabl, Dissenting opinion, per material, and re- laborers, bought paid paid he to the defendant whatever noticed about works ported he for him which deemed Prior important know. to the there the works accident, rules and posted printed reg- ulations to observed by workmen, were signed “ B. T. P. Babbitt, follows: H. foreman of proprietor; Minot, John business and Babbitt, financial man.” What works; “ ” meant and financial business man ? meaning under of these words all the was, circumstances, to deter- will mined bear the They jury. certainly interpreta- was in the tion John business there carried the financial on, thereof. As to management the facts had thus far there was stated, There substantially dispute. to show that John was understood proof tending to be the head man there, workmen whose orders were to be and that when he chose ordered the men obeyed, about and that had their work, work. oversight all these due facts, Upon giving circumstance weight that the defendant resided two hundred and miles nearly fifty which he works, and that visited, unless it rarely there was no local Babbitt, manager general. super- intendent of extensive business very absence of the we think the were authorized to find that John, principal, jury at time of the accident, of the defend- occupied ant, the law as within hereinbefore stated. It is undisputed ” that Minot was foreman of the works —'whatever that may *9 mean. He have been foreman in the a sense that he was may machinist the skilled direction of the and the laborers having work; the and the execution of inference was authorized yet was John, that he subordinate to in the absence whom, of received his the directions. defendant, that John was not in It is the line of his duty, suggested he interfered with the at the of accident, when time the engine in that act he did not or stand in the and that place represent the defendant. Just the John had ordered accident, of before and other a into defend- laborers to canal boat the put under the and his direction did so. After dock they dry ant’s Crispin [Sept., v. per
Dissenting opinion, water the out of pump it was thus necessary boat placed, a worked pump for that the and there was this dock; purpose to start the went and others the and and pump, engine; and with meeting were thus some while dif engaged, they the and let the steam on for came the engine, ficulty, pur them. The of while he is, that suggestion aiding may pose have been and of general superintendent manager in his for other this standing purposes, a fellow-servant he was The rule is claimed plaintiff. a where be, that, the mas middleman, by appointment the executive exercises duties of master, as ter, employ servants, ment of and the selection of machinery, apparatus, structures, and 'tools, and means suitable appliances proper use of and other subordinate then his acts are the servants, the master is acts which but master, responsible; a that when such middleman does mere mechanical act which laborer could or with do, laborers, labors negli co-laborer, while thus a acting gence in which the master to co-laborer imposes upon middleman, occu therefore, negligence; jured a co-servant as to all matters within a.dual position, pies and the of such duties scope employment discharge as absolute as to, personal upon, all matters where he abuses vice-principal authority, with the of duties which master discharge charged have rest should himself discharged, made a I have as absolute duties. examination thorough I cases in this think country England, reported affirm that there is no case which the question safely may this dual relation has been involved, where recognized rule laid down. The rule is thus Wood’s thus stated and there is a Servant, 438, Master §§ the same effect in Brickner dictum by Judge Potter R. Lans. 506, 516). Y. R. Co. case I have (2 N. C. only find in which the involved and able been precise point (31 is that Berea Stone Co. Ohio decided St. 287). Kraft Kraft laborer In case stone of the com- quarry *10 Crispiu v. Dissenting opinion, per and was the the and fore- one Stone of pony, agent company man of its and fastened Stone quarry. improperly certain' hooks to a for the of it with stone, soft raising purpose derrick about which Kraft was also the hooks engaged, broke from who then fell, Kraft, the stone away injuring suit the to recover his At damages. brought against company the of close the the counsel the evidence, requested company “ the trial That a First, liable corporation judge charge: to an or want of care in negligence proper respect acts and as it such duties as master or required perform without the rank title of the principal, regard agent ” “ intrusted with their That if the Second, performance: the of the defendant’s foreman, when happened by negligence of a work co-laborer with the doing plaintiff, not when duties as foreman and discharge repre- sentative of cannot unless recover, shows that the defendant did not exercise reason- able care selection a foreman.” Both prudence refused, and the refusal was requests held to be proper. said: J., court, The fact, writing opinion Botutos, if it true, be Stone’s assisting fastening hooks stone be raised have caused the may injury, and that he was then common work- performing man, not those to the duties strictly foreman, pertaining in no relieves the wise If the act company liability. done him had done under his been direction, as did by it, its could employes company, and for the doubted, be reason act, committed the hand of another, was, law, act of the foreman, act*of master. consequently And it could no less the act of the master when performed the foreman person.”
It is the founded on rule, of natural principles jus- shall tice, for his own every person responsible only as he or directs employs personal wrongs, including another to commit. If one selects suitable do lawful and and is no act, proper guilty negligence making *11 Crispest v. Babbitt. [Sept.,
528 Eabl, per opinion, J. Dissenting and the or in selection, instructing directing agent, act, does a or wrongful causing negligent of natural law there no abstract another, principle justice held which the master can for such be responsible by injury. alone must standard, by wrong-doer respond. Judged v. 156, 157; The S. Law of Coon & (Wharton’s Negligence, §§ 6 U. R. R. Barb. Flike B. & A. R. R. Co., Co., 49, & W. R. Metc. Co., Farwell v. B. R. supra; 56.) has its foundation in doctrine of respondeat superior public said case last that it is J., cited, Oh. policy. Shaw, “ from considerations adopted policy security.” It has and safest been deemed wisest rule, master him who selects servant motion, puts reaps of his should be held labor, benefit responsible negligent in his service. To acts committed enforce the wrongful has the rule sometimes been responsibility two innocent must one of suffer invoked where parties by he must a third bear burden of party, wrongful third which- enabled loss who party position placed But it is held him to commit the England, wrong. that the of this country, most the States responsibility should not so far servants extended several employing sustained servant as make him liable by a acts co-servant in a engaged consequence As the master’s common business employment. responsi the doctrine of has extended respondeat by superior been bility .that doctrine has been considerations policy, from public considerations the master’s limited similar respect by limitation has to his servants. no founda responsibility and all natural it attempts tion abstract justice, than that of will foundation public policy prove upon any to the test of careful and when brought logical unsatisfactory analysis. of modern which times, contrib-
As most of enterprises and the welfare of must society, to human ute progress end numerous servants same working carried it has been would cast masters, supposed under common Crispin- j 1880. opinion,
Dissenting per a master much to hold him liable for too responsibility could sus- guard, against possibility injuries, a co-servant, tained one servant and. that the if servants would be better protected they obliged *12 their rather than own care those of upon rely vigilance Hence, the master. to enforce the supposed public policy, a fiction has invented which the servant is been said to assume all in the risks service which he which include engages, the risks of caused of co-servants negligence in the same common If this fiction engaged employment. if were it were held that servant literally applied, every enter- of a into the service master assumed all the risks incident ing service, to such then the master would not be responsible servant for his own such as that would be as much negligence, incident service as the of a negligence co-servant. maxim volenti non would shield the injuria master. fit the fiction is But not to shield the master. He is held applied for his own whether in responsible negligence, engaged of the duties to him as master or discharge peculiar working side with his in side servants the same kind of labor. So the fiction should to shield the master from applied for the middleman in responsibility negligence standing his him. Public does not place representing policy require the doctrine of should respondeat be thus far superior It is much limited. not too for master to be responsible He for his a selected with person negligence. generally care, skill, and is more than superior judgment generally, servants, able to his master for his own respond negli- I can no reason founded perceive gence. upon public policy, is none founded of natural as there upon any principle justice, doctrine of its for respondeat superior limiting applica- a the relation master and such an tion to between existing master should all his for responsible negligence" agent. in his he service, because stands his while engaged him as his alter I can no reason ego; perceive representing for doc- founded policy expediency enforcing public does a favor of which not exist case in such strangers, trine — XXXVI. Sickels Vol. Crispís [Sept., v.
Dissenting opinion, per it iii other servants for favor common enforcing master. held for some
A rule that a master shall be responsible neg- and not for other his responsible acts of ligent representative, time, within the at the same done scope acts, possibly would be service, the same of his illogical, per- employment Take the case of general superin- and inconvenient. plexing It is conceded tendent railway. duties which master owes to his absolute
discharge — — would corporation responsible. servants, duties furtherance should, instead But suppose mechanical about business, perform master’s would there be laborers common engaged, founded policy, distinguish- public reasqn, principle the master a cases and the two imposing upon ing ? and not in the other the one case Suppose superintend- *13 and train to started, ordered a some ent carelessly thus would be liable for corporation undoubtedly injured, Would not be thus liable instead if, of order- damages. others, the train to be started he his own hand placed ing started it himself? to the lever and Would he be carelessly of the the one corporation case responsible representative and not in the other ? he was a train Suppose standing upon that train and started himself, of cars an causing and at the one, some same moment of time he care- an to start ordered another train, lessly engineer causing would the be liable for corporation injury; damages and notin other? The the one case in all this question act cases, class consequent negligent injury being the servant 'act is is whether whose proved, complained him as his alter stood place master—represented is That If f he fact. always mainly question did, ego rule of law then the to be applied plain simple, which the same would measure of the master responsibility his service. stranger n On the one it is claimed that hand, determining we the master such must look cases, responsibility, solely hispís" O Eabl, Dissenting opinion, per whose at the duties the servant acts devolved upon that if we find that the which he of, complained when he committed engaged discharging negligent one of those absolute duties which the wrong his servants, owed to then the master is no matter responsible, what was the of the servant. the other On grade position I the rule hand, claim that in be, responsi- determining master for the we acts of his bility servant, must look at the of such and we must servant, solely position consider duties devolved for the upon him, solely purpose and if he determining we find that position, within the rules representative stated, above then must the master be held ail his acts of responsible negli- committed within the of the business intrusted to gence scope hands, well to co-servants as strangers. It cannot claimed that what John L. Babbitt did was an idle business hand. If thing, having pertinency he was there defendant’s we works, as have assumed the jury found, in his standing having general charge then was business, to do whatever he saw fit empowered in and about that business and in furtherance of its objects. Whatever he order could another to do, could do employ himself. Did he the defendant when he represent ordered the laborers to the boat into the dock, put dry represent him a few minutes later when he his hands to the put engine to further the same work % he had If ordered another servant to do this careless the defendant act, would have been liable, and does the defendant because John did the escape liability *14 himself ? I no. say,
Our attention has been called to some taken on exceptions of the defendant to the refusals of the trial part judge have been requested. They substantially disposed discussion, need, further foregoing therefore, attention. should be affirmed. judgment
Folgeb, Ch. J., Andrews and Miller, JJ., concur with J. Danforth JJ., Bapallo, Finch, concur with reversed. Judgment