64 N.Y. 5 | NY | 1876
Lead Opinion
The recovery was had in this action solely by reason of the negligence of a co-employe of the plaintiff's intestate. The issue, under the instructions to the jury, was narrowed down to the question, "whether there was negligence on the part of Bagley; an omission of that ordinary and reasonable degree of care and prudence which a man of ordinary and reasonable care and prudence will exercise in the conduct of his own affairs."
The jury were told that if there was no such negligence, the defendants were entitled to a verdict. The alleged negligence, *8
which was thus made the sole subject of inquiry, was the omission to examine and securely to repair the supports of the mash tub which had been repaired, and in fact replaced, but eleven months before its fall, resulting in the death of the intestate. At that time it was, as was assumed on the trial without objection on the part of the plaintiff, or a request to submit any question of fact in respect thereto to the jury, well and properly constructed, and securely placed, and the beams and posts upon which it rested sound and in good condition. No personal neglect or want of care was charged upon the defendants either in examining into the condition of the supports, or in repairing them, nor was it claimed that they knew, or ought to have known, that repairs were necessary to the proper support of the burden resting upon them, or the safety of those employed in the building. Neither were the defendants charged with any omission of duty or want of proper care in the selection of competent servants and agents to make proper and needful repairs in every part of the building, and the fixtures, or furnishing proper and suitable materials for that purpose. We concur in the opinion of Judge SMITH, in the Supreme Court, that the cause was submitted to the jury upon an erroneous issue. The rule is well settled, and is salutary as tending to induce proper care on the part of servants and employes, and as limiting the liability of masters for injuries to their servants to their own personal acts or omissions of duty, that a master is not liable to his servants for the negligence or want of care of fellow-servants who have not been negligently appointed or retained in service. (Wright
v. N.Y.C.R.R. Co.,
It is not of any consequence that the negligent servant by whose want of care or skill harm comes to another servant in the same general employ, is charged with some special authority or duty, and that the two, the injured and the one causing the injury, are not equal in station and authority. The fact that the careless and negligent servant is placed in superintendence or authority over the others does not constitute an exception to the general rule. (Wilson v. Merry, L.R., 1 Scotch and Div. App., 326.)
An exception has been engrafted upon the rule, and in the application of that exception the learned judge at the trial fell into the error suggested. When the servant by whose acts of negligence or want of skill other servants of the common employer have received injury is the "alter ego" of the master, to whom the employer has left every thing, then the middleman's negligence is the negligence of the employer for which the latter is liable. The servant in such case represents the master, and is charged with the master's duty. (
In Wilson v. Merry (supra), the injury was caused by the negligence of the general manager of the works of the defendants at the coal pit, and the defendants having selected proper and competent persons to superintend and direct the work, and furnished them with adequate materials and resources, were not liable to the co-employes of the general manager or foreman, for injuries received through his carelessness or want of skill. The unskillful and improper erection of a scaffold by the foreman or manager, as a means for the prosecution of the work of those employed, destroyed the ventilation of the mine which was sufficient before, and caused an explosion of fire-damp, resulting in the death of the plaintiff's son. The same principle is illustrated and applied in Feltham v. England (L.R., 2 Q.B., 33); Murphy v. Smith (19 C.B. [N.S.], 361); Gallagher
v. Piper (16 id., 669, 692); Warner v. Erie R. Co. (
There was no warrant for holding, as matter of law, the defendants in this case liable to the plaintiff's intestate for the neglect and want of care of Bagley, the foreman of the carpenters employed in the brewery.
The judgment must be reversed, and a new trial granted.
Dissenting Opinion
The material question involved in this action as to liability of the principal for injuries arising from the negligence of employes, has been frequently before the court, and in respect to which, as will be seen by reference to the cases, there is some difference *13
of opinion among members of the court. The principle upon which the verdict in this case was obtained has been, in my opinion, adjudicated in several cases in this court. The duty of maintaining the building in a secure and safe condition, at all times, for workmen employed in the building, was a duty devolving upon the principal. He was bound to exercise proper care to prevent the accident which occurred, and when he delegated that duty to Bagley, the latter represented the principal, and the principal is responsible for his acts and omissions in respect to such duty. Although disclaimed by my brethren, I cannot but think that the reversal of the judgment will be deemed at variance with the rule heretofore adopted by this court in Laning v.N.Y.C.R.R. Co. (
All concur with ALLEN, J.; except CHURCH, Ch. J., and RAPALLO, J., dissenting.
Judgment reversed.