29 Barb. 419 | N.Y. Sup. Ct. | 1859
Lead Opinion
The defendant’s counsel requested the judge to charge the jury that J ohn Terry was not the servant of the defendant, but of Seth Terry, and that the "defendant was in no way responsible for his acts. The judge refused so to charge, and charged in substance that the act of John Terry, in setting the fire, was the act of Seth Terry, and that, if it was negligent to set the fire at the time, and under the circumstances described by the witnesses, then the plaintiff was entitled to recover. Seth Terry was the defendant’s hired servant, and worked on the farm on which the fire was set, by the month. John Terry was the son of Seth, but was not in the defendant’s employ; and so far as the evidence shows, there was no legal relation whatever between John and the defendant. The setting of the fire, which the jury have found was a negligent act, was done by J ohn at the time, by the express direction of his father. Upon this state of facts the judge, I think, was clearly right in instructing the jury that the act of setting the fire was the act of the father. It was, his immediate personal act; for although it was done by the hand of the son, the hand was directed, guided and controlled by the mind and will of the father. It was the father’s will and volition exclusively. It was his carelessness, and not the carelessness of the son. It was precisely as much the act of the father as though he had used some other means or instrument in conveying the fire and kindling the flame. This being so, the defendant was clearly liable, if the setting of the fire was within the scope of the employment of Seth Terry as a hired<.servant upon the farm. Of this, it seems to me, upon the undisputed facts, there can be no doubt. He had been directed by the defendant to summer fallow the piece of ground where the fire was set. In order to prepare the ground for the plow, it became necessary to cut and remove the brush
It is objected that the jury were charged that the defendant would be liable, if the act was negligent, whether the act was within the scope of the servant’s employment or not, as it was done by a person who worked on the premises. The charge in its commencement would seem to bear such a construction, and to lay down as a rule of law the doctrine first asserted by Rooke, J., in Bush v. Steinman, (1 Bos. & Pull. 404,) “ that a man who has work going on upon his premises and for his own benefit, must be civilly answerable for those whom he employs; that it shall be intended by the court that he has control over those who work upon his premises, and he shall not be allowed to discharge himself from that intendment of law by any act or contract of his own.” This doctrine, which strikes at the very foundation of the rule which makes the master liable only for the negligent act of the servant while engaged in the business he was employed to transact, has frequently been repeated in other cases since, by judges both in England and in this state; but no case which turned upon that question has, I think, been decided in England or here. It was, however, for a time, assumed by judges
There is one ground, however, on which a new trial must unavoidably be granted. The plaintiff’s counsel upon the trial asked a witness, from what he saw, how much damage the fire did to the farm. This was objected to, on the part of the defendant, on the ground that it was incompetent, as calling for an opinion from a witness on a question of damages which belonged to the jury to determine after hearing all the facts. The objection was overruled, and the defendant’s counsel excepted. The witness thereupon gave his opinion that the farm had been damaged- to the amount of $5 per acre. This was clearly erroneous. It was putting the witness directly in the place of the jury. (Morehouse v. Mathews, 2 Comst. 514. Paige v. Hazard, 5 Hill, 603. Dunham v. Simmons, 3 id. 609. Fish v. Dodge, 4 Denio, 311.) The order at special term refusing a new trial, must therefore be reversed, and a new trial granted, with costs to abide the event.
T. R. Steong, J., concurred.
Dissenting Opinion
I cannot concur in the decision that the question put to the witness, Jacob Williams, is objectionable. It is only when questions of this nature require or admit an answer compounded of law and
T. R. Strong, Smith and Johnson, Justices.]
The case of The Rochester and Syracuse Rail Road Co. v. Budlong, (supra,) was before me at the circuit, and the question objected to under consideration, was allowed on the authority of that case. I think that case was rightly decided, and I cannot concur in overturning it.
New trial granted.