Decker v. Erie Railroad

Hookeb, J.: This action was brought against the Erie Railroad Company, the-respondent, and the Lehigh and Hew England Railroad Company. Each of these defendants appeared and answered separately. At the close of the plaintiff’s case a motion was made to dismiss the* complaint as to the Erie: Railroad. Company on the ground that there was no legal connection established between that company and the persons whose negligence it was claimed produced the accident.. This motion was granted, and from the judgment entered thereon . the plaintiff appeals to this court.' The plaintiff was injured at a railroad crossing on the Pine Island railroad, near Goshen, in October, 1900, and his claim is that no signal was given by the bell or whistle from the train by which he was-struck, and no headlight was carried by the engine which struck him. It was stipulated on" the trial that the train in question was-one belonging to the Lehigh and Hew England Railroad Company. The plaintiff introduced in evidence two agreements; the first-was a lease between the Goshen and Deekertown Railroad Company and the respondent of the tracks and the property, of the first-named road; it was under this lease that the respondent was in possession of the railroad upon which this accident occurred; the second was an agreement between the two defendants in this case,, entered into -in January, 1897, under which the Lehigh railroad operated trains over the tracks owned by the Goshen and Decker15 town Railroad Company. That agreement recited that the Lehigh Company desired to obtain trackage rights from Pine Island to Goshen, and provided for the division of the proceeds of the business done by the trains of that company, which was authorized to run and operate its passenger and freight trains over the. tracks in question. The agreement further provided : “ The railroads and premises included herein shall at all times be maintained and operated during the continuance of this contract by the Erie Company exclusively. The Lehigh Company’s trains shall be run on schedules approved by the Erie Company and shall at all times, while on the premises covered by this contract, be subject to the latter company’s rules, regulations, orders and control. The train crews and engine crews of the Lehigh Company, while on the premises included herein, shall be subject to the exclusive control of the Erie Company. No person shall be employed in the train crews or engine crews of the Lehigh. Company, unless approved by the Erie Company, and any member of the train crews or engine crews of the Lehigh Company may be forbidden to run on the lines included herein, at any time, by the Erie Company.” The evidence introduced by the plaintiff was such as to require the question of negligence of the persons in charge of the locomotive by which the plaintiff was struck to be submitted to the jury, and the question presented upon this appeal is, therefore, whether the respondent is liable for the negligent acts of the members of the train or engine crew which inflicted the injury. This is a case where the doctrine of respondeat superior applies, and it must be held that the Erie Railroad Company is liable for the acts of those whose conduct is in question. The Erie Company assumed entire control and authority over the train and engine crews, and it cannot escape liability for their acts. The gist of the rule as to whether or not defendants are liable as the master of those whose negligent acts have resulted in the infliction of injuries to others has been whether the parties sought to be held have assumed control either of the work or the workmen ; whether they had the right of selection, of direction and of discharge. (McCafferty v. Spuyten Duyvil & Port Morris R. R. Co., 61 N. Y. 178, and cases cited.) These privileges the respondent in this case specifically reserved to itself in. the agreement between it and the Lehigh and [16] Hew England Railroad Company. It would .be difficult to imagine a case where a party might have more exclusive control or complete command of servants than the respondent possessed of the train and engine crews in charge of the Lehigh and Hew England Company’s train in this case. Cain v. Syracuse, B. & N. Y. R. R. Co. (27 App. Div. 376) is relied upon by the appellant. That is distinguishable from the case at bar. There the conductors alone of the Lackawanna coal trains were to be under the control and orders of the superintendent of the defendant, and power was lodged in him to discharge any employees of the Lackawanna Company for misconduct upon defendant’s road. Here the entire train and engine crews of the Lehigh Company were subject to the- exclusive control of the respondent. The use of the word “ exclusive ” is significant; under the terms of the contract the Lehigh Company was powerless to direct or command in the premises while the train crews were upon the Goshen and Deckertown railroad tracks. These crews were not only subject to the control of the respondent which possessed also the power to discharge, but this control was exclusive in it. These views lead to a reversal of the judgment and a new trial, costs to abide the event. Bartlett and Jenks, JJ., concurred ; Goodrich, P. J., read for affirmance, with whom Woodward, J-., concurred.