167 N.Y. 543 | NY | 1901
Lead Opinion
On or about the third day of August, 1895, the plaintiff's intestate, a locomotive engineer in the employ of the defendant, was killed by the derailing of a train resulting from an open switch, through which the train passed from *544 the main track while running at a high rate of speed. There can be no doubt that the negligence of the person who had charge of the switch and left it open was the cause of the accident. The plaintiff was nonsuited at the trial upon the ground that the person in charge of the switch, and to whose negligent act the accident is to be attributed, was a co-servant with the deceased, and the judgment has been affirmed at the Appellate Division. The facts upon which the nonsuit was directed are substantially these: At the time of the accident the Western Union Telegraph Company was engaged in stringing a line of telegraph wires along the defendant's road and that of the Boston and Albany Railroad Company from Albany to New York. The telegraph company had a push car, by which it moved its materials from point to point, placing the car on sidings convenient for the purpose. The work was first done from Albany to Chatham, which is the northerly terminus of this road of the defendant. The foreman of the telegraph company testified that when the working party reached the defendant's road he notified the train dispatcher of the defendant that he was about to commence work, and requested "that a man be detailed to protect the tracks." In pursuance of that request the dispatcher sent to the working party one Miller, who was in the general employ of the defendant as a brakeman, and had served in that capacity for several years. He was paid by the telegraph company during his service with its workmen. He procured the key to the switches, and was the only person who could open or close them. On the occasion of the accident the push car of the telegraph company had been run in on a siding. Miller neglected to close the switch, and the train on which the plaintiff's intestate, the engineer, was, ran into the open switch, collided with a car standing thereon, was derailed and the engineer killed. If Miller, the switchman, was at the time of the accident in the service of the defendant and the co-servant of the deceased, the judgment below is right. If, on the contrary, he was not at that time in the defendant's service, but in the service of the telegraph company, then the nonsuit was improper.
It must be admitted that this case is well on the border line, *545
but we are inclined to hold that the switch tender, whose negligent act caused the death of the plaintiff's intestate, was not a co-servant of the latter within the meaning of the rule that exempts the master from liability to the servant for personal injuries. The negligent switchman was undoubtedly the general servant of the defendant, but the latter had loaned him to the telegraph company that was engaged in independent operations on the railroad track at the time of the accident. The switchman was then taking his orders, not from the railroad company, but from the telegraph company. He was paid for this work by the latter, and he opened and closed the switches, as it needed that work to carry on its operations of stringing wires and working upon the telegraph line. In opening and closing the switch he was not doing the work of the railroad but that of the telegraph company, as the latter required that act to be done from time to time in order to move the push car whenever and wherever it became necessary. The defendant had permitted the telegraph company to carry on certain work of its own on the railroad track distinct from that of operating the railroad. In order to accomplish what it set about to do the telegraph company was obliged to add to its working force, and it procured from the defendant one or more of the men employed to do work as railroad employees. Miller, so far as it appears, had never been employed by the railroad as a switchman, but had been assigned to other duties. He became the switchman only when the telegraph company needed him for that work, and procured the defendant to send him to it for that work, to act under its own orders and directions, not in operating a railroad but in assisting to repair the telegraph lines. The fact that he had been selected and taken from the employees of the railroad does not prove that he still remained in the service of the defendant, or was not the servant of the telegraph company. Therefore, for the time being, he held the same relations to the telegraph company as the other men engaged in repairing the line. At the time of the accident, therefore, and in respect to the very transaction out of which the injury arose, the switchman was not in the defendant's service, but in the service of the telegraph company that *546
paid him his wages and directed his acts. It is the case of a general servant of the defendant employed for a special and particular purpose by the telegraph company, and so ad hoc the servant of the latter. The facts in this case render it somewhat difficult to designate the master of the switchman at the moment he committed the negligent act which resulted in the death of the intestate, but we think it should be held, within the doctrine of recent cases in this court, that he was then in the service of the telegraph company, and hence not the co-servant of the engineer who was killed. (Murray v. Dwight,
The judgment should be reversed and a new trial granted, with costs to abide the event.
Concurrence Opinion
This judgment should be reversed, but I cannot assent to the grounds stated in the prevailing opinion. The judgment dismissing the complaint was affirmed by the Appellate Division on the ground that Abraham Miller was a co-servant of the deceased intestate and that the railroad company was, therefore, not liable. It is now proposed to reverse this judgment on the ground that the defendant railroad company had loaned its employee, Abraham Miller, to the Western Union Telegraph Company, and that he is to be regarded as in the employ of the latter company at the time of this accident. A number of cases are cited in support of this view, and among them McInerney v. D. H.C. Co. (
The telegraph company, before entering upon the work of stringing wires along the defendant's road, applied to its general train dispatcher to furnish a man "to protect the tracks;" thereupon Abraham Miller was sent to represent the company *548 for that purpose. Here was a gang of men in the employ of the telegraph company, engaged in work entirely distinct from that of operating a railroad; it involved the presence of a car loaded with materials on the main track of the defendant, and it was absolutely essential that the company should detail a representative to protect the running of its trains and the general operation of the road; in view of this unusual situation Miller cannot be regarded as an ordinary switchman, whose sole duty it was to open and close the switches at various points. It is equally inaccurate to say that Miller was engaged in the work of the telegraph company and subject to the control of its foreman. It may be that when the business of the telegraph company required the car containing the materials to be placed upon the side track for its own purposes, Miller was bound to operate the switch and place the car where requested. This, however, was not his chief duty; he was called upon to represent the defendant company to "protect the tracks;" to see to it that the prosecution of the work by the telegraph company did not interfere with the running of trains upon the road and imperil the lives of those operating them; as to that duty he was the representative of the company; he alone carried the keys to the switches; he only knew the running time of the trains, and upon him solely rested the responsibility of regulating the movements of the telegraph company's car so as to enable the defendant company to continue in the discharge of its duty to furnish a safe place in which its engineers and other trainmen might work, as the presence of this alien gang of workmen was neither an ordinary nor obvious risk assumed by an employee. The fact that the telegraph company paid Miller for his time is of no importance. This case is most unusual in its facts and is to be treated as sui generis. Miller filled a position which is to be distinguished from that occupied by any other employee of the defendant company; he was, quoad hoc, the sole representative of the defendant.
It follows from these views that Miller was neither a co-servant of the deceased, nor in the employ of the telegraph company, and his negligent act rendered the defendant company liable. *549
Dissenting Opinion
The action is brought for damages for the death of the plaintiff's intestate, alleged to have been caused by the defendant's negligence under the following circumstances: On August 3rd, 1895, the deceased was in the employ of the defendant as a locomotive engineer. At that time the Western Union Telegraph Company was engaged in stringing a line of telegraph wires along the defendant's road and that of the Boston and Albany Railroad Company from Albany to New York. The telegraph company had a push car by which it moved its materials from point to point, placing the car on sidings convenient for the purpose. The work was first done from Albany to Chatham, which is the northerly terminus of this road of the defendant. The foreman of the telegraph company testified that when the working party reached the defendant's road he notified the train dispatcher of the defendant that he was about to commence work and requested "that a man be detailed to protect the tracks." In pursuance of that request the dispatcher sent to the working party one Miller, who was in the general employ of the defendant as brakeman and had been so for several years. He was paid by the telegraph company during his service with its workmen. He had the key to the switches and was the only person who could open or close them. On the occasion of the accident the push car had been run in on a siding. Miller neglected to close the switch; the train on which the plaintiff's intestate was the engineer ran into the open switch, collided with the car standing thereon, was derailed and the engineer killed. A nonsuit at the Trial Term was affirmed in the Appellate Division by a divided court, a majority of the members holding that Miller, whose negligence caused the accident, was a fellow-servant of the deceased, while the minority were of opinion that he was the servant of the Western Union Telegraph Company.
There can be no question that the negligence which occasioned the injury to the deceased was in the conduct of the work as distinguished from a failure of the master to provide for his servant a safe place to work and safe appliances. There is no claim that the switch was defective; the train was derailed because Miller left the switch open. The operation *550
of switches along the line of a railroad is a detail of the work of transportation and switchmen and train hands are fellow-servants, and for the injury caused to the one by the negligence of the other the master is not liable. (Harvey v.N.Y.C. H.R.R.R. Co.,
The cases cited by the learned counsel for the appellants, as to the liability of a railroad company to its passengers for the negligence of the servants of another company whom it has allowed to use its road, have no application to the present case. The liability of a company to its passengers is wholly different from that to its employees.
The judgment appealed from should be affirmed, with costs.
MARTIN and VANN, JJ. (and BARTLETT, J., in memorandum), concur with O'BRIEN, J., for reversal; PARKER, Ch. J., and WERNER, J., concur with CULLEN, J., for affirmance.
Judgment reversed, etc.