85 N.Y. 61 | NY | 1881
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *63 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *65 This action is brought by the plaintiffs, as administrators, to recover damages for the death of Adelbert D. Slater, their intestate. The cause of his death was the collision of two engines, each drawing a train on the Erie railway operated by the defendant as receiver. It is claimed that the collision happened from negligence, chargeable to the defendant, though not proceeding immediately from him. The intestate was in the service of the defendant, as a fireman on one of the engines that came together. The immediate negligence that caused the accident and the death was that of the conductor on the train meeting that on which the intestate was serving, co-operating with that of a telegraphic operator at Salamanca, a station on the defendant's road. The latter having omitted to give to the engineer the orders received from the train dispatcher as to the place where the two trains should meet, which his instructions required him to do, and having reported a performance of his duty, and the former having signed the engineer's name, without his knowledge, to an acknowledgment and receipt of order, and then having failed to communicate the order to him; in consequence of which the engineer went on with his train, instead of waiting at the station designated until the other train came up.
The complaint avers, that it was the duty of the defendant *67 to employ competent, trustworthy and skillful men, and to make proper regulations for the running of his trains so as to insure the safety of persons operating the same, and to provide, as far as practicable, against accident and injury to them in their employment, and in the performance of their service for him. This averment correctly states the duty of the defendant, unless it overstates it, when it sets his duty at so high a mark, as that of an insurer of the safety of his servants. The measure of the master's duty to his servant is reasonable care, having relation to the parties, to the business in which they are engaged, and the exigencies which require vigilance and attention, and conforming to the circumstances in which it is to be exerted. We agree that the defendant was bound to do all else that the averment puts upon him, unless it is read as making him a guarantor of the safety of his servants. The complaint avers that the defendant failed to employ proper and competent persons to manage and run his trains, and proper and suitable persons to give orders and information in respect thereto and properly to communicate the same to engineers and conductors of trains; and that he failed to make and enforce proper and reasonable rules and regulations for the running of his trains. The proofs of the plaintiffs did not seek to introduce into the case any other element of lack of duty in the defendant than these thus averred. And we think that the case is clear upon the proofs, that the defendant made no failure of duty, unless it was in the enforcement of the rules and regulations made by him for the running of his trains. Whether he failed in that is, we think, a question of law properly brought up by some of the exceptions taken at Circuit by the defendant. It is not to be questioned that the telegraph operator and the conductor of the train were negligent, and that, from their careless omission of duty and disobedience of rules, the accident resulted. The rules that had been given to them for their guidance had been prepared with great care, were minute, explicit and plain, and exceedingly well devised for safety. They had been in operation for several years before the disaster, and no accident had *68 ever taken place in the use of them. The train-dispatcher, who, concededly, was in the place of the defendant, had strictly observed these rules in this instance, and had received all the assurance needful and required by them, that they had been observed by all concerned.
Some contention was made on the argument, that there was no proof that it was not an exceptional and unprecedented thing to interfere, as was done in this instance, with the moving of the two trains, and that no cause was shown for an interference with them. The case shows clearly that it was the usage of the defendant and his predecessor, The Erie Railway Company, to govern and direct the movement of trains by such order, and that there was reason for it in this instance. The order given was a special one, by reason of delay; but by special is not to be understood unusual and unprovided for. For nine years these rules had been in operation, and the witness who testifies to that, so applies his words as to plainly indicate that they had been in use in giving like directions to engineers and conductors on like occasions of delay. The proof shows that the time-card is the general order, and it comes from the superintendent. An order varying it on a special occasion comes from the train-dispatcher. The special order is as much provided for by the general regulations as the general time-card or other general rules. It is the conductor's duty to obey the special order, which supersedes, for the particular train, the general order. A special order to stop at a station, having been received, there is no right to go beyond that station until further direction. The rules proven and set forth in the case recognize the usage to stop and move trains by special order varying for the nonce the general time-card. Indeed, as we may take judicial notice of the way in which banks and like public institutions do business (Agawam Bank v. Strever,
Each of those agents, in doing their ordinary work for the defendant, were fellow-servants of the intestate, in the same common employment. The conductor was engaged in the particular work in which the intestate was — that of moving trains. The telegrapher was engaged in a work closely connected therewith — that of receiving and giving information of the whereabouts of trains and communicating orders to those controlling them for stopping or going on. This was a branch of the general business of the defendant essential to the smooth and successful movement of the whole — that branch of it in which the intestate was engaged as much as any other. No question seems to have been made on the trial but that the operator and conductor were competent and skillful when the defendant took them into his employ. It cannot be contended that there was any thing required of the conductor that raised him out of his relation to the intestate of a fellow-servant. The act required of the conductor, at the particular time, was to receive an order from an authorized source of command, *70 and in a prescribed mode to acknowledge the receipt of it, and then to follow the direction. This was service merely. It is contended that the duty of the telegrapher at the time and the act required of him were those that the defendant was bound to perform as master, and that the negligent performance by the operator was the negligence of the master.
The argument to sustain this position consists, in part, in an effort to show that the duties of the operator were in no respect like to those of the intestate. They were not like, but they tended to the same end — that of the speedy, efficient and successful carriage of passengers and freight over the railway. There are many kinds of servants of a great railway company. Their duties are not in all cases the same, nor always like, yet they are all done to bring one result, and it is their conjoint simultaneous and harmonious performance that does effect the finality, sought through the whole complex organism. If it be so that this operator sometimes received and sent messages that had naught to do therewith, still, on this occasion, the act required of him had direct connection with the acts of those engaged in moving the two trains. The position, that the operator was hired and discharged by one superior agent, and the intestate by another, and that, therefore, they were not fellow-servants, is not sound. The general authority to hire and to turn away was in the defendant. It did radiate from him through different chiefs of department in his general work. His, however, was the ultimate power. The heads of bureaus were not independent contractors, doing a branch of his work on their own responsibility, and free from his interference with their subordinates. He had the right to step into their spheres of duty and act for himself.
There is more plausibility in the position, that the act that was to be done on this occasion was so essentially one for the master to do in his duty to his servants, that whatever subordinate was taken by him to do it, came to be the master in doing it. It is urged, and with reason, that clearly arranging and promulgating the general time-table of a great railway is the duty and the act of the master of it; that when there is a variation *71
from the general time-table for a special occasion and purpose, it is as much the duty and act of the master, and he is as much required to perform it; that it is the duty and act of the master to see and know that his general time-table is brought to the knowledge of his servants who are to square their actions to it; that the same is his duty and act as to a variation from it, which is but a special time-table; and that, therefore, whoever he uses to bring those time-tables to the notice of his servants, he puts that person in his place to do an act in his stead, inasmuch as the responsibility is upon him to see and know that it is done and done effectually; and that if, instead of doing it in person, he chooses to do it through an agent, that agent, prohac vice, is he the master, and he the master is responsible for a negligent act therein of that agent whereby a fellow-servant of him is harmed. The rule has been laid down in repeated cases in this court, in terms so broad as to come close to this case. (Flike v. B. A.R.R. Co.,
The case was not given to the jury on this theory. It was, in the words of the learned counsel for the plaintiff, submitted to them on the theory that "the act of the operator was the act of the master."
This we think was an error that calls for a reversal of the judgment and a new trial.
All concur, except DANFORTH and FINCH, JJ., dissenting.
Judgment reversed.