72 N.Y.S. 243 | N.Y. App. Div. | 1901
The judgment in this action awards to the plaintiff $10,000 as damages for personal injuries received by him while in the employ of the New York Times Company by the unexpected starting of a printing press.
There is practically no dispute in respect to the facts, and the controversy in this case is reduced to the inquiry whether the defendant is responsible under the doctrine of respondeat superior for the alleged negligence of the defendant’s servant, and whether a man of reasonable prudence and foresight under the circumstances of this case might reasonably have anticipated the accident.
It" appears that in July, 1898, the New York Times Company' entered into an agreement with the defendant, the World’s Dispensary Medical Association, to publish certain advertisements in consideration of an electrical motor and rheostat to be manufactured and delivered at Bound Brook, N. Y., by the defendant corporation, the American Engine Company, the engine company to send a man to superintend the installation of the machines. The engine company manufactured and delivered the motor and rheostat and sent Urban and Porter, two experts in their employ, to install them. The motor was put in place by Urban on or about the seventh day of October, and about the same time the rheostat was installed by Porter. The Times Company accepted the motor and rheostat about the seventh day of October and used them to run its presses from the tenth to the nineteenth of October, when Porter was sent to repair and readjust the rheostat, which consisted of a series of resistance wires for the purpose of controlling and regulating the flow of electricity to the motor. He had no instructions to do anything to the motor or press, and testified that he did nothing to them. Porter commenced work about nine o’clock in the morning of the nineteenth day of October, the day of the accident, and worked until midnight putting an additional row
There is no conflict or doubt in regard to the fact that Porter was in the employ of the American Engine Company, but the ques-' tion is, whether at the time of the accident he was doing the defendant’s work. To render one liable for the negligence of another the relation of master and servant or principal and agent must'exist in respect to the transaction out of whieh the injury arose. (Stevens v. Armstrong, 6 N. Y. 435; King v. N. Y. C. & H. R. R. R. Co., 66 id. 181.)
Servants, while employed and paid by one person may, nevertheless, be ad hoc the servant of another in a particular transaction and that too when their general employer is interested in the work.
In Higgins v. W. U. Tel. Co. (156 N. Y. 75) the 'contractor had the right to usé the elevator, and for that purpose could have employed his own servant. ■ Instead of doing so, he called upon a general servant of the owner of the building, whose duty it was to
The case of Wyllie v. Palmer (137 N. Y. 248) is also similar to this. There it was a part of the contract that the manufacturers of fireworks should send a .man to assist in handling and exploding the pieces sold. The defendants sent one of their men and a boy to assist him. A member of the committee directed the boy to discharge some rockets. A rocket discharged by the boy struck and injured the plaintiff. It was held that, assuming there was negligence on the part of the boy, he was not at the time acting as a servant of the defendants and they were not liable. The court said : “ The doctrine of respondeat superior applies only when the relation of master and servant is shown to exist between the wrongdoer and the person sought to be charged for the result of some neglect or wrong at the time and in respect to the very transaction out of which the injury arose. (Thorpe v. N. Y. C. & H. R. R. R. Co., 76 N. Y. 406; Dwinelle v. N. Y. C. & H. R. R. R. Co., 120 id.
In Smith v. N. Y. C. & H. R. R. R. Co. (78 Hun, 524) a station agent placed two torpedoes upon the track -under one of .the freight cars and then ran hack to the station house. When the' wheels of the freight car passed over the torpedoes an explosion occurred causing several fragments to.pierce plaintiff’s leg. Judge Haight in his opinion said : “ If by doing what he did he went ■ outside of his employment in order to effect a purpose of his own, in-exploding the torpedoes for his own amusement and not for the purpose of signaling the train, then the company would not be liable.”
In Cavanagh v. Dinsmore (12 Hun, 465) a servant in the employ of the defendant, as driver of a truck, turned off his course at the request of a third party as a personal favor to the latter, and while so off duty negligently ran over and killed the .plaintiff’s intestate. The court said: “ The departure of the driver from the ordinary ■ route to the stables for the purpose of doing a favor to his coservant, as stated-in the; evidence, Was clearly an unauthorized deviation and not within the scope of his duty. He cannot be said-, within-the authorities, to have been acting in the service of the defendants ' while engaged in going for the trunk and valise of his coservant and in taking them to their destination.”
In Quinn v. Power (17 Hun, 102) the defendant was the owner'of a ferry boat run by his employer between the city of Hudson and ' the village of Athens. The pilot of the boat, as a favor, took from the dock at Athens a man who had been left -by a tow which had landed there and was then continuing its way up the river. - Through the negligence of those in charge of the ferry boat she collided with one of the canal boats and the plaintiff’s intestate was drowned; The court held that the employees of the ferry boat had without authority departed from the business of the defendant, that he was not responsible for any negligent acts.
This case cannot be distinguished from these and other cases which might be cited in vindication of the well-settled principle that the master is not liable for injuries sustained by the- negligence of his ■servant while engaged in an unauthorized act beyond the scope and duties of his employment. The fact proved and not disputed was,
It is clear that the relation of master and servant between Porter and the engine company was suspended during the time he was doing the work for the Times Company at the request of its foreman, and for that reason the plaintiff should fail and the motion for a nonsuit should have been granted.
If, however, it be conceded that Porter was acting within the scope of his authority at the time of the accident, the defendant merely rested under the general duty imposed upon all men to abstain from injuring another intentionally or negligently. Before the plaintiff. could charge the defendant with negligence in discharging the press by connecting it with the water pipe, he should have furnished some proof tending to show that the accident could have been reasonably anticipated. There is no fact in proof from which it can be said that such an accident was reasonably to be expected, or which permits the inference that Porter ought to have foreseen that such an accident was possible. So far as appears in the evidence an accident of the nature proved had never happened before. Plaintiff’s witness Porter, as well as defendant’s witness
■ It is a -welhséttléd proposition of law that a. patty is not bound to foresee and provide against a casualty never before, known and reasonably not to be expected. Hence, his duty is not to.1 be estimated and determined by what after the accident then first appears to be a proper precaution against a recurrence of it.. (Bowen v. N. Y. C. R. R. Co., 18 N. Y. 408; Dougan v. C. T. Co., 56 id. 1; Jex v. Straus, 122. id. 293.)
If the result is of such a character that reasonable prudence and foresight would not have forecast its happening as a consequence of the act, then it may not be considered as a- proximate, cause. (Beetz v. City of Brooklyn, 10 App. Div. 382, and authorities, cited; Saverio-Cella v. Brooklyn Union R. R. Co., 55 id. 98.)
Viewing the evidence in the light most favorable to the- plaintiff, we think'that the movement of the press was such an extraordinary and unheard-of circumstance that the failure to foresee and provide against it cannot in any fair or proper view of the subject be called negligence. (Cleveland v. N. J. S. Co., 68 N. Y. 306.;. Loftus v. Union Ferry Co. of Brooklyn, 84. id. 455; Hubbell v. City of Yonkers, 104 id. 434; Lafflin v. Buffalo & Southwestern R. R. Co., 106 id. 136; Frobisher v. Fifth Avenue Trans. Co., 151 id.. 431; McGrell v. Buffalo Office Building Co., 153 id. 265.)
The judgment and order denying motion for á new trial should be reversed and a new trial granted, costs to- abide the event.
Goodrich, P. J.,.Woodward and Jenks, JJ., concurred; Hirschberg, J., dissented.
Judgment and order reversed and new trial granted, costs to ■ abide the event.