20 Barb. 449 | N.Y. Sup. Ct. | 1855
The first ground upon which the demurrer in this case is predicated is, that the 'complaint does not set forth facts sufficient to constitute a cause of action. The complaint, after stating that the defendants were an organized company and the owners of the road, and were running it, avers that on the 2d day of December, 1853, while they were so running the road, the plaintiff’s intestate was in the employ of the defendants as an engineer upon their locomotive, while it was in their use and service on that day. This is a sufficient allegation to show that the relation of master and servant existed between the parties. At all events it shows that McMillan was lawfully on the road on that occasion, at the request of the defendants, and as their servant actually engaged in conducting the locomotive at the time of the happening of the injury complained of. The duty is created by law, and the general allegation, I think, is sufficient. It may be said, it is true, that this is the rule as between the company and third persons, but that a different rule prevails as between master and servant, where particular accidents or mishaps may be guarded against by special contract. (Story on Agency, 453, e. 3 Seld. 498.) But in the view I have taken of another point it will not be necessary further to consider this position, at the present time. Ho special contract, however, between the principal and agent is to be inferred from such an allegation.
The great question is, whether the plaintiff should have averred actual notice to the defendants, of the defects complained of, or some of them. In Keegan v. The Western Rail Road Corporation, (4 Seld. 175,) Ch. J. Ruggles, in delivering the opinion of the court of appeals, says that “ the cases 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, were not applicable to the case then under consideration. That they were only applicable where the injury complained of happened without any actual fault or misconduct of the company, either in the act which caused the injury or in the selection or
These remarks I consider as peculiarly appropriate to the present case. The plaintiff’s intestate was the engineer upon the very locomotive which contained the defects complained of. It was his duty to have made known the defects to the company, as in the case of Keegan v. The Western Rail Road Corporation. He was responsible as well to the public as the company, for not making them known. It was his duty, and it was confided to him by his employers, to guard against all accidents liable to happen by the escape of horses or other animals upon the track, through the defect of fences or otherwise. He would be more likely to know of occasional defects in fences or cattle-guards or bridges than the company or their officers elsewhere located. He was bound at all times to exercise all diligence and caution against the happening of accidents, and to thus protect himself as well as his passengers and the property intrusted to his care. He had the knowledge, or the means of knowledge, within his own power. He might have required special indemnity against all risks, or he might have given notice to the company and have thrown the risk upon them. (3 Mees. & Wels. 1. Story on Agency, 451 d, e. Parsons on Contracts, 528.) “The master,” says the latter, “ is not responsible ’for an accident happening in the course of his service, unless the master knew that it exposed the servant to peculiar danger, and the servant did not.” (And see Add. on Cont. 744.)
The servant, then, to be entitled to recover, as seems to be established by all the cases, must prove actual notice to the principal of the defects complained of as causing the injury, or some of them. And in order to be able to prove notice, he must allege it in his complaint. It is argued that no notice was averred in the case of Keegan. But the evidence was received by the referee without objection. And the question did
It is further insisted that the defendants in this case must have known whether they built the fences or not, and that they are charged with not building. The plaintiff, however, avers that the horse escaped on to the road in consequence of a defect in the fence between a certain lot and the rail road, which it was the duty of the defendants to maintain and keep in repair; they admitting that the fence had been built but had become defective and out of repair. The same remark is applicable as to the cattle-guards, and the bridge. All which defects, as before remarked, were more likely to have been known to the engineer than to the company, particularly the insufficiency of the cow-catcher attached to the locomotive, to permit which he might be deemed to have been grossly negligent himself. Without further pursuing this subject, I am satisfied that the judge was right at special term in sustaining the demurrer, and I am for affirming the order, with $10 costs.
Order affirmed.
C. L. Allen, Bockes and James, Justices.]