8 Barb. 358 | N.Y. Sup. Ct. | 1850
Lead Opinion
If the Saratoga and Schenectady Railroad Company would have been liable to the plaintiff for the killing of his cow on the occasion in question, had the action been brought against them, the defendants are also liable. The master is liable for the acts of the servant while acting within the scope of his authority, upon the principle that what a man does by another he does by himself. (Reeve’s Bom. Rel. 356, et seq.) When the act is a tort, arising from the negligence of the servant, while in the service and legitimate business of the master, the master and servant are both liable. (Ib. And see Wright v. Wilcox, 19 Wend. 343.)
The question then recurs, would the railroad company have been liable upon this evidence, had the action been brought against them ? The charter to that company was granted on the 16th February, 1831, (Laws of 1831, p. 41,) and the 15th section enacts that the corporation shall possess the general powers, and be subject to the general restrictions and liabilities prescribed by such parts of the eighteenth chapter of the first part of the revised statutes, as are not repealed. The charter
From what has been said it is obvious that there is nothing in the 42d and 46th sections of the general act of 1848, that is
As the Saratoga and Schenectady railroad had omitted to erect fences and construct cattle-guards, at the spot where this occurrence happened, they are responsible for the injury. Having neglected and refused to comply with the precautionary measures, deemed essential by the legislature, they must suffer the consequences resulting from such neglect. Although the accident in this case appears by the evidence to have been nearly, if not quite, inevitable, yet no man can shelter himself from, responsibility for an act, however inevitable, which has been brought upon him by his own wilful violation of duty. (See 1 Cowen’s Tr. 60 ; Jones on Bail. 70, 117, 118, 119 ; 2 Kent’s Com. 576 ; Code Nap. 1881, 1882.) Had the fences been erected and the cattle-guards constructed, as the statute required, the injury to the plaintiff’s property would not have been occasioned. The defendants, it is said, were driven to the necessity of deciding between saving the lives of their passengers, or the life of the plaintiff’s cow; and it is urged that they should not be held responsible for yielding to the stronger impulse of humanity and duty. This position would be impregnable, if the necessity had not been created by their employers. They were not compelled to remain in the service of the railroad company, after the latter neglected to comply with the statute. Such neglect greatly increased their responsibility, and absolved them from their contract of service. If they continued to remain at their respective posts, they have no just cause of complaining
The wisdom and policy of the measures prescribed to railroad companies by the 42d section of the general act, can never be drawn in question in a judicial forum. If they are not forbidden by the constitution, as we think they are not, it is the duty of the court to enforce them. They do not interfere further with the freedom of individual action, or the rights of property, than other restrictions which have been, in numerous instances, found necessary and expedient, and which have been followed with general acquiescence and commendation. They spring from the same fountain of natural justice, which commands every one so to use his own as not to impair another’s right. They rest on the same footing as the law of the road, the regulations with respect to the meeting and passing of canal boats on our canals, and the exhibiting of lights at a given elevation by steamboats and vessels on our internal waters. (1 R. S. 695, 245, 683, 684.)
No part of the general railroad act authorizes, as has been supposed, the depasturing of the land of the corporation. On the contrary, the obvious policy of the act is to prevent animals not only from straying onto the road, but also to forbid individuals from leading or driving any horse or other animal on the road, and within such fences and guards, other than at farm crossings, without the consent of the corporation, under the penalty of ten dollars, besides being liable in damages to the party aggrieved. Here is a cumulative remedy given, above what the common law affords, for a trespass. The 40th section subjects to punishment, as for a misdemeanor, all wilful injuries to the buildings, structures, &c. of the corporation; thus protecting, by the highest sanction, among other things the fences and cattle-guards which they are required to erect. In truth, the security of passengers on the railroad, and thus the advancement of the interest of the railroad corporation, were the primary motives for these stringent and salutary regulations.
A criticism has been applied to the language of the 46th section, which, if correct, will defeat the law altogether. It is urged
The objection that Losee ought to have been discharged, on the ground that he was not the agent of the company, but the servant of the engineer, and employed by him, has been strenuously urged. This court has decided that one of several defendants sued for a tort, is entitled to be discharged when the facts with respect to him, are such that if standing alone he would have been entitled to a nonsuit; and that a refusal to grant a discharge in a proper case, is error. (McMartin v. Taylor, 2 Barb. Sup. Court Rep. 356.) Although the fireman is hired by the engineer, and has charge of the brake under the direction of the engineer, he is still, in a legal sense, the servant or agent of the company. , It can not be doubted that the company would be responsible for an injury occasioned by an incompetent fireman or brakeman. If a servant employs another servant to do a piece of business, and in doing it the servant so employed is guilty of an injury, the master is liable. (Reeve’s Dom. Rel. 365. Busk v. Steinman, 1 Bos. & Pull. 404. Ran
I think the judgment of the justice was right, as was also that of the county judge in affirming it.
Paige, P. J. and Cady, J. concurren.
Dissenting Opinion
dissented, on the ground that the agents or servants ‘of a railroad company could not be made liable for an injury not occasioned by any fault of theirs.
Judgment of the Saratoga county court affirmed.