| NY | Mar 5, 1853
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *180 delivered the opinion of the court: This case comes before the court on the report of a referee in the nature of a special verdict, and the question is, whether, upon the facts found, the defendants are liable.
The plaintiff was injured by the explosion of the boiler of a locomotive engine on which he was employed by the defendants as a fireman. The boiler was defective and dangerous, and its condition in this respect was, and had for some time been known to the defendants by the reports of the engineer made on five or six different occasions, which were entered on the books of the defendants kept for that purpose, and the injury to the plaintiff resulted from the improper conduct of the defendants in using the engine in question thus known to be defective.
On this statement of facts no doubt can be entertained of the liability of the defendants.
The cases referred to, in which it has been held that a principal is not liable to one agent or servant for an injury sustained by him in consequence of the misfeasance or negligence of another agent or servant of the same principal, while engaged in the same general business, are not applicable to the case now under consideration. They are applicable only where the injury complained of happened without any actual fault or misconduct of the principle, either in the act which caused the injury, or in the selection *181 and employment of the agent by whose fault it did happen. Whenever the injury results from the actual negligence or misfeasance of the principal, he is liable as well in the case of one of his servants as in any other. But where the injury results from the actual fault of a competent and careful agent, (as may sometimes happen,) the fault will not be imputed to the principal when the injury falls upon another servant, as it will where the injury falls on a third person, as for instance on a passenger on a rail road. In the case of a passenger the actual fault of the agent is imputed to the principal on grounds of public policy; in the case of a servant it is not. The reasons for this distinction may be found in the cases cited by the appellants' counsel. But it is unnecessary to state them here, because the injury in the present case is found to have resulted directly from the negligence or misconduct of the defendants themselves, in continuing to use an engine having a defective and dangerous boiler, after notice of its dangerous condition.
It was made a point on the argument that the plaintiff knew the condition of the boiler, and therefore took the risk upon himself. But this point is not sustained in point of fact. The referee does not find that the plaintiff knew it to be in a dangerous condition, and this fact, if material, can not be presumed by the court.
Judgment affirmed. *182