49 N.Y. 521 | NY | 1872
Viewing the case as the jury would have been warranted in doing, it comes in the main" to this.
The plaintiff with others, he and they being fellow-servants of the defendant, were engaged in the course of their ordinary service, in' the performance of a work for the defendant, to do which it was necessary that there should be put up a scaffold for them to stand upon.
One Westman, the foreman of these men, directed one Ohurchill and another to put up the scaffold. There is some dispute in the testimony as to who the other was; but the jury might properly have found that one Foreman was the person who,, by direction of Westman, helped Ohurchill. Ohurchill had been in the employ of the defendant for some months, engaged in different kinds of subordinate service. It is not shown for what particular service, if for any particular service, he was hired by Coleby, who was the agent of the-defendant to hire these men. Eor was it shown that he wanot skillful and competent to do that for which he was hired, and in fact to do all that was put upon him to do before the task of building this scaffold. Foreman is not shown to have' been hired by th e defendant. Coleby testified that he did not know him and that his name was not upon the pay-rolls of the defendant. The plaintiff testified that the day of the accident was the first day on which he had seen him there. Churchill could not say that Foreman had worked there after
The scaffold fell from a defect in its construction; this defect was mainly from building it with timbers too small in size, and too poor in quality, being cross-grained and hence weak.
There was no lack of good and proper material, which could have been as readily got at. Indeed, there was an abundant supply of proper material; but the insufficient timbers which were used were taken from the mass by Churchill and Foreman, either from a lack of skill to select better, or from a lack of faculty to perceive the necessity of using stronger, or from a lack of strength to handle and lift larger and heavier timbers, or from these three causes combined. It was, at all events, from the unskillfulnes and incompetency of Churchill and Foreman for this particular work, that the scaffold was so unsafely built that it fell.
The plaintiff knew that the scaffold was built by some of those there engaged at work. He did not know who were the individuals that built it, nor the manner in which it was built, not having seen it while they were building it, nor until by the direction of the foreman he stepped upon it.
Westman the foreman, was a competent man in skill and natural judgment. It does not appear that, at the time he was hired for the defendant, he had acquired any habit which detracted from his competency. At the time of this work, however, he was not temperate in strong drink. The testimony tended to show that he was drunk on the day, and near the time of the accident. The testimony does not show directly, though it is an inference which a jury might make
The plaintiff well knew the habits of Westman in this particular, and knew that he was drunk on this day, not only at the time of the accident, hut before, and that he had been •drunk on days before that. The testimony tended to show that Coleby had knowledge of Westman’s habits. The jury might so have found.
Such being the fact, if the plaintiff has ground of action against the defendant for this injury and the resultant damage, it must be found in the want of skill, and in the incompetency of Churchill and Foreman and in the use of them by Westman for the work of erecting the scaffold. Indeed, it may be .stated yet more narrowly, and it must be found alone, in the use of these two young men for this work by Westman. For it is not .shown .that Churchill was hired for this kind of work, or for work of this importance to others. The employment of him was not like that of one to act as an engineer for the peculiar duty of managing an engine, or as a switch-man to attend to a switch, but it was general. The proof shows that the labor he performed was miscellaneous, not altogether that of a -mechanic; and the particular work to which he went was not because he was hired for that specifically, -but because be was set at that by his immediate superior. From the time of his hiring until this occurrence, it •does not appear that he was incompetent to do that for which .-he was employed and at which he was put. It does not appear that Foreman was hired at all by the defendant, or by Coleby their agent to hire men. Coleby, who hired the men, and had lured Churchill, neither hired him for this purpose, nor did he set him at this work; on the contrary, Coleby testified that this scaffold was built without his knowledge, and that 3ie had instructed Westman, the plaintiff, and the others who
With the reservation however, from these last two. statements, of any negligence of Coleby, in continuing in the. employ of the defendant a man of Westman’s habits after notice or knowledge thereof.
Nor, with the same reservation, was it the negligence off the defendant, or of any of its agents, other than Westman-
We have thus presented to us this case. One servant of a, common master is injured by the negligent act of a fellow-servant of a rank one step higher. The act of negligence: in the fellow-servant is the result of an incompetency which did not exist, when he entered the employment of the master. It is not permanent, but occasional, and produced by evil habits, the existence of which was known before and at the time of the injury, both to the servant, injured and to the hiring agent of the master.
A master is not liable to those in his employ for injuries resulting from the negligence, carelessness or mistionduct of a fellow-servant engaged in the same general business. Hor is the liability of the master enlarged when the servant who has sustained an injury is of a grade of the service inferior to that of the servant or agent whose negligence, carelessness or misconduct has caused the injury, if the services of each, in his particular labor, are directed to the same general end. And though the inferior in grade is subject to the control and directions of the superior whose act or omission has caused the injury, the rule is the same. Hor is it necessary, to exempt the master from liability, that the sufferer and the one who causes the injury should be at the' time engaged in the same particular work. If they are in the employment of the same master, engaged in the same common work and performing duties and services for the same general purposes, the master is not liable.
These rules seem to have been laid down with care, after due consideration, to be sustained by reason, to have been assented to by more than a bare majority of this court, in at least two instances, at some interval of time, and should be adhered to in any case the facts of which bring it within the purview of them. (See Wright v. N. Y. C. R. R., 25 N. Y., 562; Warner v. Erie Railway, 39 N. Y., 468; and the cases cited in them.)
The cases cited hold, further, that the master is liable to a servant for his (the master’s) own personal negligence, or want of care and prudence, and for his own personal act or misconduct occasioning injury and damage to the servant. And such negligence, want of care and prudence, act or misconduct, may be shown in the mismanagement of the master’s affairs in the selection and employment of incompetent and unfit agents and servants, or the furnishing of improper and
And to charge a master with liability to one servant for an injury on the ground that he has selected and employed another unskillful and incompetent servant, it must appear that the injury complained of was the result of the want of skill and competency of the other. (25 N. Y., supra.)
So far, we doubt not that the learned counsel for the appellant and respondent respectively would agree. But just here arise points of difference.
The appellant claims, as we understand its position to be, that it acts through a board of directors, and acts immediately in no other way; and that when the board of directors, itself composed of discreet, prudent and honorable men, has selected and employed skillful and competent general servants, agents or superintendents, it has done its whole duty to the servants of lower rank, who shall in turn be selected and employed by those of general powers and duties. The negligence, it is claimed, of these general servants, agents and superintendents, is not the negligence of the corporate body, nor of the board of directors through which in the first instance the corporate body acts; but that it is, so far as a servant of the corporate body in any rank is concerned, the negligence of a fellow-servant, for which the master is not liable. And it is claimed that the rule we have above extracted (to wit: that the negligence, want of care and prudence, act or misconduct of the master, may be shown in the selection and employment of incompetent and unfit agents and servants) is only applicable when such selection or employment is by the master in person, and not through a general or superior agent; and that such rule is to be governed by the other rule extracted above (and which the defendant claims to be), that the master is liable to a servant only for Ms own personal negligence or want of care and prudence, and for his own personal act or misconduct occasioning injury and damage to the servant. And, indeed, taking another rule above given, in the full scope of the general language in
If we adopt the statement in 25 E. Y., and apply it to the facts of the case at bar, we must say that the defendant is no more liable for the negligence of Coleby in continuing the employment of Westman, though he was incompetent from drink, than for the negligence of any other servant; nor any more liable for the negligence of Westman, in directing to the putting up of this scaffold of two incompetent men, though that negligence was the result of his own temporary incompetency, his liability to recurrence whereof was known to Coleby, the agent of the defendant to employ and dismiss servants. And upon this the learned counsel for the appellant relies to sustain the position taken by it. They cite to us no other case which so holds. Warner v. Erie Railway (39 N. Y., supra) was the case of a, structure originally sufficient, but rendered unsafe by gradual decay, which decay, under the careful inspection of competent agents, in modes deemed sufficient by skillful and practical men, had not been discovered. Wilson v. Merry (L. R [1 Scotch App.], 326) was the case of a negligent act of a competent servant. Gallagher v. Piper (16 C. B. N. S., 692) was also a case of negligence, not of incompetence. Hard v. Vt. Cent. R. R. (32, Vt., 473) was the same.
While the reports of this State seem to be meager in authority in this particular point, the question has been somewhat discussed and decided in other States. (See Gilman v. East R. R., 13 Allen, 433; Noyes v. Smith, 28 Vt., 59; Hard v. Vt. and Can. R. R., supra ; Frazier v. Penn. R.
It is well maintained, in these eases, that if the position of the appellant is upheld in its full extent, it will, in most cases, relieve a corporate body, and any employer who acts through general superintendents, from liability to servants for injuries occasioned by imperfect and defective machinery, by unsafe mechanical means and appliances of any kind, and by all incompetent and unskillful sub-agents furnished without due care. And this statement of the learned judge in Wright v. New York Central Railroad was not necessary to the disposition of the case. Sufficient reasons for the judgment of the court had already been found in the fact that the injury complained of did not result from the incompetency or unskillfulness of the fellow-servant, whose act, it was claimed, had occasioned it, and, perhaps, in the fact that the plaintiff knew the perils of the service and continued in it, voluntarily assuming the risks; and in the further fact that the servant complained of was competent, and that there was no negligence in selecting him for the work. We may decline, then, to be bound by it, so far as this question is concerned. We should not hold as there enunciated, unless it is the dear result of former decisions. The duty of the master to the servant, as it is sometimes put (25 N. Y., 556), or his implied contract with his servant, as it is differently intimated (Farwell v. B. and W. R. R., 4 Metc., 49), leads to another conclusion. That duty or contract is to the result that the servant shall be under no risks from imperfect or inadequate machinery, or other ^material means and appliances, or from unskillful or incompetent fellow-servants of any grade. It is a duty or contract to be affirmatively and positively fulfilled and performed. And there is not a performance of it until there has been placed for the servant’s use perfect and adequate physical means, and for his helpmeets fit and competent fellow-servants; or due care used to that end. That some general agent, clothed with the power, and charged with the duty to make performance for the master, has not done his duty at all, or has not done it well,
The duty being that of the principals, and theirs the con- . tract; it is theirs to fulfill and perform, and if it is not done, ^ or- insufficiently done, the failure'to do is theirs. As is well said, “ if a master’s personal knowledge of defects be necessary to his liability, the more he neglects his business and 'abandons it to others, the less will he be liable.” (Byles, J., in Holmes v. Clark, infra) We hold, therefore, that a master is liable to his servant for an injury caused by the incompetency or want of skill of a fellow-servant, whether it existed when the fellow-servant was hired, or has come upon him since the hiring, the fellow-servant having been in the first instance hired, or afterward continued in service, with notice or knowledge or the means of knowledge of this lack. The duty of the master to his servant is to use reasonable care to provide and employ none but competent and skillful
And applying this rule to the case in hand, we are of the opinion that the defendant was negligent towards the plaintiff j in retaining Westman in its service, after his habit of drinking to drunkenness was known to Coleby, its general ; agent for hiring and discharging men of the class of Westman.
Here, however, comes in another rule, which affects the relations of master and servant. A servant has no cause of action against a master for an injury resulting from the negligence of the master, where the servant’s negligence contributed to the taking place of the injury. And where a servant knows as fully as the master of the existence of that which is at last the producing cause of the injury, and eontinues, without promise of amendment of the defect, of his own accord in the master’s employ, exposed to the effects when they shall come, it may constitute contributory negligence on his part to remain thereafter in the service. (Assop v. Yates, 2 H. & H., 768; Hayden v. S. Manuf'g Co., 29 Conn., 548; Skip v. E. C. Railway Co., 24 Law and Eq., 396; The Mad. Riv &. L. E. R. R. Co. v. Barber, 5 Ohio St., 541; and see Bassett v. The Nor. & Wor. R. R. Co., 9 Law Rep., 551.)
The learned counsel for the respondent cites Snow v Hous. R. R. (8 Allen 441), as a contradiction of the principle maintained in these cases. But an examination of it shows that 'the plaintiff therein was not a servant of the defendant therein. He was in the employ of the Western Railroad Company, which company, by contract with the defendant there, used its road and track for making up trains, etc., at the place where the plaintiff was injured. And the learned chief justice, in delivering the opinion of the court, says: “It does not appear that he (the plaintiff) was employed in any duty or service for or on behalf of the defendants; on the contrary, it is stated that he was in the employment of another corporation. * * * * On these facts it is difficult to see how the doctrine applicable to a claim for damages occasioned by the carelessness of a fellow-servant against a
The court, in that ease, recognizes the existence of the rule now under notice, but concludes that it does not apply to the facts of that case. (See page 450 of the report.) In Gilman v. East. R. R. Co. (supra), cited by the learned counsel, the question now under consideration was not passed upon, and . was expressly ignored as not raised on the trial. (See page 445 of the report.) We have read the other cases cited by the learned counsel on this point, and apprehend that no ruling will be found in them different from that above expressed, by us. While all of them hold that it is the duty of the master to provide safe and sufficient machinery and appli-. anees, and skilled and competent agents and servants, none of them assert that if the servant, who knows as well as the master of a lack in these respects, is injured thereby, he is not open to the imputation of a contributory negligence;; and the reason why is simple but sufficient. It is at his option ordinarily, to accept or to remain in the service or to ' leave it; and if he remains without promise of a change or other like inducement, it is for the jury to say whether or not he voluntarily assumes the risks of defective machinery ' and of incompetent servants, whereof he has full and equal knowledge.
The case does not show but that Westman, when first he came into the employ of the defendant, was competent in all respects. His incompetence and unfitness subsequently occurring were temporary and occasional, the result of evil habit. They had come to the knowledge of Coleby, who had power to act, so that it was negligent for the defendant to retain Westman in its employ. But it is apparent that the plaintiff knew as well, and indeed far better than any one else, the habits of Westman, and his particular condition on that day. The strength of the affirmative testimony on both of these points is from the plaintiff’s mouth. The plaintiff knew that the building of this scaffold was going on. He knew that neither of the persons who had built the other two
It is now to be seen what was the action of the court below on this question, and what exception the defendant has taken to bring that action under review.
The defendant, when the plaintiff rested, and also when the proofs were closed, moved that the plaintiff be nonsuited on the ground that the negligence of him and his fellow-employes contributed to the accident. But there was enough in the testimony to justify the court in denying, as it did, that motion;
Two of the requests to charge, made by the defendant at the trial, were addressed to the question of the plaintiff’s knowledge of Westman’s habit, and the contributing negligence of the plaintiff by reason thereof; but each of them is based upon the idea that the knowledge of the plaintiff of the incompetency of Westman was a bar to a recovery, and not merely a fact to go to the jury with the other evidence; from all of which they were to determine whether the plaintiff was to be charged with negligence contributory to the injury; These requests were, therefore, properly refused.
The court upon this subject charged the jury that the plaintiff’s knowledge of the fact of Westman’s intemperance would not exonerate the defendant from responsibility; yet, it called upon the plaintiff to exercise more caution, care and judgment than he otherwise would have done, and that he was bound to exercise ordinary care and caution in view of that fact. The defendant excepted to so much thereof as instructed the jury that knowledge of the fact in the plaintiff did not exonerate the defendant. In our view the learned judge at circuit was correct in that; the charge was to the effect that in this case knowledge was not of itself, in point of law, an answer to the action. (See cases above cited.)
* * * * * *
The requests to charge, which were refused, assumed as proven what was yet to be determined pro or con. by the jury,
The declarations of Coleby, the admission of which in evidence was objected to by the defendant, were properly received. He was the agent of the defendant, with the power and the duty of hiring and discharging servants. He had the power to discharge Westman for any fault amounting to incompetency. His neglect to do so, after knowledge on his part of a reason why he should, was the neglect of the defendant, and it was competent to prove by his own declarations that he had such knowledge, made as they were to the plaintiff' in the ease. They were part of the res gestee, and had a bearing upon the question of the contributory negligence of the plaintiff.
There is one other point made by the defendant, which requires notice.
The verdict for the plaintiff was for the sum of $10,000. A motion was made at Special Term to set aside this verdict as one against evidence, and that the damages are excessive. The motion was denied. From the order of Special Term denying it, the appeal was taken to the General Term, where a new trial was denied, and judgment ordered for the plaintiff on the verdict. The defendant claims here that the General Term was of the opinion that the damages were excessive, but also of the opinion that it had no power to reduce them, and no power to do aught but grant a new trial for that reason, which for that reason alone it declined to do. The defendant claims that the General Term having the power to reverse the judgment and order a new trial, unless the plaintiff should stipulate to reduce his recovery to a sum which the court should name, and to order that, if he did so stipulate, the judgment should be affirmed for that sum, it erred in not exercising that power.
It is true that it was a matter of discretion with the court
The claim of error here under notice is to be sustained, if at all, not upon anything shown in the order of the court at General Term, nor upon the judgment entered thereon, nor upon anything which appears in the record. The opinion delivered at General Term, if it can be used, shows plainly that if the court there had deemed that it had the power to reduce the damages, still leaving a recovery, it would have exerciséd it, but that it was of the opinion that it could effect that end only by granting a new trial for that reason, and that the excess of damages was not of itself quite sufficient to warrant an order for a new trial.
But we are not authorized to review a judgment, and to reverse it for an alleged error which does not appear upon the record, and is not shown or to be arrived at, save by expressions appearing in the opinion of the court.
The judgment must be affirmed with costs to the respondent.
Judgment affirmed.