The plaintiff, a young man about twenty years of age, received a personal injury from the falling of a pulley block at the defendant's warehouse on the 24th day of March, 1894. The evidence tended to show that the block fell by reason of the negligence of the defendant's general employees, or some of them, and the question presented at the trial was whether the plaintiff was a co-servant with them within the rule that relieves employers from liability in cases of accidents of this character. The trial court held that the plaintiff was a co-servant of the person whose negligence caused the injury, and the complaint was dismissed. On appeal to the Appellate Division this judgment was reversed and a new trial granted, and in this condition the case comes here.
The opinion of the learned court below contains a clear and concise statement of the facts concerning the accident, the substance of which we may safely adopt. The defendant was the owner of a warehouse in which there was a hoisting apparatus for the purpose of hoisting and lowering heavy *304 articles from one story to another. There is a projection at the roof in which there is an iron wheel over which a chain passes down in front of the building and about a foot and a half therefrom. This chain at the roof passes into the building and around a drum and thence to the back part of the building. An endless rope is attached to the drum, by means of which a man in the building may operate it and hoist or lower the chain outside. If it is desired to use horse power in hoisting, a pulley block is attached to the door post in the lower story and another pulley block with tackle is hooked on the chain and drawn up to the top of the building. A rope connected with the upper block passes down and over the lower pulley and thence into the building, and to this a horse is attached. In operating the tackle the horse moves forward and backward within the building.
The plaintiff was the servant of a truckman and was sent by his master with a horse to hoist at the defendant's warehouse. The goods to be moved from the first to a higher floor in the warehouse were barrels of lime. The plaintiff, on arriving at the warehouse with his horse, stopped near the curbstone in front of the door while other men in the employ of the defendant were putting in place the pulley blocks and tackle. The upper pulley block was hooked on to the chain and was being drawn up to its place by one of the men operating the drum inside. When the block was nearly up the plaintiff was told to go in, and as he started to do so, the block fell upon the plaintiff. He had not worked there before and, as the testimony tended to show, knew nothing about the apparatus for hoisting. He had nothing to do with placing it in position. The horse belonged to the truckman, the plaintiff's master, and the plaintiff was paid by him. The work of moving the barrels of lime from the lower to a higher story was under the direction of the defendant's foreman.
The question when and under what circumstances the servant of a general master becomes the servant of another is often difficult of solution. There is some apparent conflict in the authorities, due more to the difficulty of applying the *305 legal principle to ever-varying facts than to any discord with respect to the principle itself. Moreover, the rule is subject to some distinctions that are not always easy to state in such a way as to render the result in every case so plain as to command acquiescence, or to give to the decision the character of a conclusive authority. Counsel upon both sides have, in the argument of this case before us, subjected the leading authorities to a very careful and able examination that has thrown so much light upon the question that we have been greatly aided in arriving at what appears to us to be the proper conclusion. We think the judgment of reversal in the court below is correct. The opinion of Judge MERWIN contains such a clear statement of the law as deduced from the numerous cases, and such a judicious application of it to the facts, that we would not attempt to add anything to his reasoning but for the fact that the learned counsel for the defendant has attempted to prove by an argument, which bears all the marks of industry and discrimination, that it is in conflict with two or three recent cases in this court. Before referring to these cases, it may not be amiss to point out a feature of the controversy peculiar to this case and which distinguishes it from many, if not all of those cited.
The relation of master and servant is often confused with some other relation. The mere fact that one person renders some service to another for compensation, expressed or implied, does not necessarily create the legal relation of master and servant. There are many kinds of employment which are peculiar and special, where one person may render service to another without becoming his servant in the legal sense. A servant is one who is employed to render personal services to his employer otherwise than in the pursuit of an independent calling. The truckman who transports the traveler's baggage or the merchant's goods to the railroad station, though hired and paid for the service by the owner of the baggage or the goods, is not the servant of the person who thus employs him. He is exercising an independent andquasi public employment in the nature of a common carrier, and his *306
customers, whether few or many, are not generally responsible for his negligent or wrongful acts, as they may be for those of other persons in their regular employment as servants. A contract, whether express or implied, under which such special jobs are done or such special services rendered, is not that of master and servant within the law of negligence. (Jackson A. Iron Works v.Hurlbut,
The plaintiff beyond all doubt was in the general service of the truckman and so was his general servant. In that capacity he represented his master and, hence, was a truckman himself. In the pursuit of that calling he was directed by his master to render special services to the defendant, not in moving goods from the store or warehouse to a place of shipment, but from the lower floor of the warehouse to an upper floor. It so happened that in this particular job it was not necessary to use the truck, but it was necessary to use the horse in order to furnish power to hoist the goods. Neither the time, nor duration of employment, nor the rate of compensation, was the subject of any express contract with the defendant, and from the nature of the case there could not well have been any well-defined agreement on the subject. The employment in its scope and character was in no respect essentially different from that which every truckman enters into with his numerous customers in the course of a day as a carrier of baggage or goods. The fact that the plaintiff detached the truck and performed the job with a horse alone did not change the character of the employment, nor the legal relation that exists between an ordinary truckman and his customers. The goods were moved, it is true, not by the truck, but by another contrivance, and the plaintiff's duty was to manage and guide the horse, which was the real power behind the pulleys and tackle, as it would have been when hitched to the truck. In this capacity the plaintiff represented his general master, the truckman, and was all the time his servant, and did not become in any legal sense the servant of the defendant any more than he would if employed to move *307 the goods to a railroad station on the truck, and if not such servant he could not, of course, have become the co-servant of the defendant's regular workmen.
The recent cases in this court cited by the learned counsel for the defendant, and to which we will now briefly refer, differ widely from this in the nature of the employment and in the legal relations held by the person guilty of the wrong or negligent act and the party sought to be charged with its consequences.
In Wyllie v. Palmer (
In Higgins v. W.U.T. Co. (
In McInerney v. D. H.C. Co. (
The judgment of the court below should, therefore, be affirmed, and judgment absolute ordered for the plaintiff, with costs.
While it is true that a variance in the facts of a case of negligence may vary the application of established rules, courts should aim at consistency and, where the facts do not materially differ, apply them strictly. This *309 case, in my opinion, falls clearly within certain recent authoritative decisions in this state; as it does within recent decisions in Massachusetts and in England.
A general principle of the law of master and servant is that, among the risks which the employé assumes upon entering an employment, is that of injury caused by the negligence of his fellow-servants, engaged in the same employment. Where one servant is injured by the negligence of a fellow-servant, the master, if the negligence was with respect to a duty pertaining to a workman and not to some duty owing from the master, is not liable for the injury. (Crispin v. Babbitt,
The facts of this case are clear and undisputed. The defendant dealt in building materials and owned two warehouses, into and from which it was frequently necessary that the materials should be hoisted, or lowered. Hoisting tackle, made fast to chains running through the upper part of the warehouses and over a drum within them, was used upon these occasions. The drum was worked by an endless rope in the hands of a man within the building and, as it was made to revolve, caused the chain to descend to the street, or to be pulled up, as it was required. To the end of the chain was attached the hoisting tackle and, when it was necessary to hoist materials, the chain was pulled up and ropes, running over pulleys upon the tackle, fell down and passed over a pulley fastened at the entrance to the warehouse. A horse would be attached to one of the ropes and, as he was driven forwards or backwards, within the basement of the warehouse, the article would be hoisted up, or lowered. A foreman of the defendant supervised the workmen, when engaged in the work of hoisting articles in or out, and it was customary, at the time, to employ a man and horse to aid them. The plaintiff was in the general employment of a truckman, named McManus, who was not usually resorted to by the defendant for this assistance; but, upon this occasion, he was applied to and the plaintiff was sent with a horse, as he says, "to hoist at Dwight's," meaning the defendant. He went to one of *310 the defendant's warehouses and, under the directions of the latter's foreman, in common with the other employés upon the premises, took part in the work of hoisting up barrels of lime into the lofts, by driving the horse forwards or backwards in the basement, as he was bidden. After the hoisting was completed at that warehouse, he, with the other men, went off to do similar work at the other warehouse near by. Until the hoisting tackle was made fast and the chain drawn up, preparatory to the hoisting of the barrels, the plaintiff, instead of going within the building, remained outside, upon the street and under the tackle. Owing to the carelessness of one of the men, who was stationed in the doorway to signal another man, who was operating the drum through the endless rope, the hoisting tackle was allowed to strike with force against the wheel, or frame, over which the iron chain passed and, breaking thereby, fell upon and caused the injuries to the plaintiff for which this action was brought.
I had supposed that the principles of law, which were applicable to the facts of such a case, and which were to determine the relative rights of the plaintiff and defendant, were well settled by recent cases and that their doctrine was well applied by the learned trial judge, when he dismissed the plaintiff's complaint. The question is, was the plaintiff, while engaged with the defendant's servants in doing the work described, for the time being, in the service of the defendant? That he was, and that he was in nowise acting independently in the matter, or as a stranger to the defendant, seems to me to be a very plain proposition, in view of what this court and other courts have laid down as guiding principles. If I read these cases right, they sustain the doctrine that one who is the servant of the general master may, if employed elsewhere temporarily, ad hoc, become the servant of the special master and it is of no consequence whether he is loaned for the purpose, or whether he is hired, not directly, but through his general master. If the particular employment subjects him to the directions and orders of another than his general master, he ceases to be the latter's servant for the time; whose responsibility *311
for his acts, also, ceases. (Wyllie v. Palmer,
If Higgins and the conductor of the elevator were fellow-servants under the contractor, although the telegraph company had merely loaned the conductor, was not this plaintiff quite as much a fellow-servant with the employés of this defendant? If McInerney and the crew of the railroad engine were fellow-servants while doing the work of moving cars in Willard's yard, although the railroad company had furnished its own men to operate the engine, how can it be fairly said that this plaintiff was not a fellow-servant with the defendant's employés? *314
The doctrine laid down by the Supreme Court of Massachusetts, in Hasty v. Sears, (supra), is exactly applicable. There the plaintiff, who was a carpenter in the employ of N. Co., was sent by them to do some work for the defendant upon his building. The defendant's superintendent directed him to do work upon the elevator shaft. The conductor of the elevator had received orders not to run down below the second floor, until the plaintiff had finished his work. He disobeyed the order and, in consequence, the plaintiff received injuries, for which he sued the defendant, who was the owner of the building. It was held that he and the elevator conductor were both servants of the defendant at the time of the injury and, as their employment was a common employment, the negligence of the conductor was an obvious risk which the plaintiff assumed and for which the defendant was not answerable to him.
The English cases fully recognize the rule that a man may be a general servant of one person and yet, at the same time, be the servant of another in relation to a particular matter. They hold that the important element, in determining whose servant for the time being he is, is, which of the two persons had the control of him in the conduct of the particular business. (Jones v.Scullard, L.R. [2 Q.B. Div. 1898] 565; Donovan v. Laing, L.R. [1 Q.B. Div. 1893] 629.) In Donovan v. Laing, we find a situation which is not to be distinguished from the one in the present case. In that case, Jones Co. were wharfingers and contracted with the defendants, a construction company, to send their crane, with one of their men to run it, for the purpose of loading a ship at the firm's wharf. When the defendants' crane and man arrived at the wharf, the plaintiff, a servant of Jones Co., acted in giving signals to set the crane in motion for the purpose of raising and lowering the goods. The defendants' man, without waiting for a signal, negligently allowed the crane to swing around and the plaintiff was injured. It was held, in an action against the defendants, that they were not liable; for they had placed their crane and man at the disposal of *315 Jones Company, and had no control over the work he was to do, and that, in the working of the crane, he was no longer their servant, but was bound to work under the orders of Jones Company. The court relied upon Rourke v. The Colliery Co. Lord ESHER, master of the rolls, observed that "so far as the working of the crane went, the man in charge was the servant of Jones Co. and was not the servant of the defendants." Lords LINDLEY and BOWEN agreed in that view: the former remarking that Jones Co. "must for that particular job be considered as Wand's, (the defendant's servant), masters," and the latter holding the law to be clear and pointing out the distinction between the carriage cases, Laugher v. Pointer (5 B. C. 547) and Quarman v. Burnett (6 M. W. 499), and the case at bar; where the general master has placed the servant under the control of another. It was, also, observed by Lord BOWEN that: "We have only to consider in whose employment the man was at the time when the acts complained of were done, in this sense, that by the employer is meant the person who has a right at the moment to control the doing of the act." Whether, therefore, we regard the recent authorities in this State, or in Massachusetts, or in England, we find the doctrine to be well settled, that one who is the general servant of a master, who employs and pays him, may, nevertheless, become the servant of another in a special employment and that it is immaterial that he does not enter the special employment by any direct hiring, or contract. In theHiggins case, the telegraph company loaned its servant to the contractor, and in other cases, from our and from other courts, payment for the services of the servants was made to their general master.
The plaintiff in this case was as much in the defendant's employment and under his direction and orders, as though the latter has engaged him, individually, to come in and assist in the work which was to be done in his building. That the plaintiff was in the general employment of a truckman, having an independent business, cannot, possibly, affect the question of the relation which he bore towards the defendant, *316 or the servants of the defendant, when he entered upon the performance of the particular work under the directions of the latter, or his foreman. In all the cases, the existence of the relation of fellow-servants, between the plaintiffs and those from whose negligence their injuries were received, depended upon the sole question of whether, at the time, they were under the direction and control of the temporary employer in performing the special work for which they were loaned, or contracted for. In no essential respect can the position of this plaintiff be regarded as differing, essentially, from that in any one of the cases referred to; where the plaintiffs, though in the service of a general master, were held, for the time being, to become the servants of other masters. Of course, cases of independent contractors, where the contracts of the parties have fixed their relative obligations, including the furnishing of men and defining their duties, are, mostly, inapplicable.
Nor do I consider it to be any answer to the proposition, that the plaintiff was injured by the act of a fellow-servant and, therefore, cannot hold the defendant liable, that, at the particular moment when the accident happened, the plaintiff was not at work. His engagement was "to hoist" at the defendant's warehouses and his employment in that respect was continuous from the time when he reported for duty. The preliminary work of hoisting the tackle, which was necessary to be done at the second building before the plaintiff could go on with his part of the work, was being done by the defendant's servants with whom he was engaged in the same employment, namely: to hoist bags of lime from the street into the upper lofts of the warehouses. He was as much, at the time, under the control and direction of the defendant, or his foreman, as he had been at any time during the day. If the defendant did not direct him to take part in the hoisting up of the tackle, that was a mere matter of the division of labor and it seems to me to be the purest kind of technical reasoning to say that, because at the moment the plaintiff was at rest and not actually driving his horse to and fro, or helping *317 in getting up the tackle, he was, therefore, withdrawn, protanto from the defendant's employment.
I think that the judgment of nonsuit at the Circuit was correct, and in accordance with the principles of the adjudged cases.
All concur with O'BRIEN, J., for affirmance, except PARKER, Ch. J., not sitting, and GRAY, J., who reads dissenting opinion.
Order affirmed, etc.