Schular v. Hudson River Rail Road

By the Court, Ingraham, P. J. The plaintiff's horse and wagon were injured by a collision with a car of the defendant at the corner of Hudson and Canal streets, in the city of Hew York. The defense was that the cars of the defendant were driven by men in the employ of Davis & Myers, under a contract with them, and that they were responsible, and not the defendant. The plaintiff was nonsuited on the trial. The first objection is to 'the sufficiency of the answer to admit of this defense. The answer denies every allegation in the complaint. The complaint charges that the agent of the defendant was driving the car, and caused the collision. A denial of this fact puts in issue the defendant’s liability, and it was not necessary to aver the contract with Davis & Myers. Even if it was necessary, we think it was sufficiently averred in the answer. The other question is whether the contract with Davis & Myers relieved the defendant from liability arising from the acts of one of the employees of Davis & Myers. They had an absolute contract with the company to draw the cars, to furnish the horses and' drivers, and to assume the entire control. While those persons were in the jierformance of their contract, I see no ground upon which the defendant could be made responsible, under the decisions in Blake v. Ferris, (1 Seld. 48;) Pack v. Mayor &c. of New York, (4 id. 222;) Kelly v. The Same, (1 Kern. 432,) and other cases which might be cited, 'the defendant had nothing to do with the driving of this car, any more than the parties in the cases cited had to do with the work which they had contracted to ' have done for them. The right to control the contractor or to terminate the contract, if the work was not done to the satisfaction of the defendant, does not alter the liability, according to the decision of the court of appeals in the case of Pack v. The Mayor &c. of New York. In that case, upon the second trial, I thought that inasmuch as the contract placed the work under the control of the street commissioner, a different rule might be adopted. But Mason, J. [656] .in that case, said, “ The clause does not constitute the workman any more the immediate agent or servant of the defendants than if such provision was not inserted in .the contract.” [New York General Term, November 3, 1862. Ingraham, Leonard and Peckham, Justices.] I see no difference between the liability in this case and that which arises from an injury in building the road. If done under a contract, it has been repeatedly held that the company was not liable. The judgment should be affirmed.