Wilson v. Hudson River Water-Power & Paper Co.

MAYHAM, P. J. The plaintiff was nonsuited by the learned judge at the trial, upon the ground that the negligence complained [1073] of was not negligence fairly imputable tó the defendant, but was the result of negligence of a coemploye of the intestate-in turning the water on the wheel, and thus setting the machinery in motion, at a time when the intestate was engaged in a position where no harm could have come to him but from the starting of the machinery, and that the intestate was not proven to be free from ■ contributory negligence. The determination of the first question upon which the learned judge placed his decision must turn upon the question as to whether Griffin, the man who opened the gate, and thus precipitated the water upon the wheel, setting the machinery in motion, was the alter ego of the defendant. If he was, then his act was the act of the defendant, and it would be charged with negligence. If he was not, then his act would be that of a coemploye, for which the defendant would not be liable. The evidence shows that Griffin was the chemist in the employ of the defendant, in its manufacturing business, and there is no direct evidence that he had any. authority or control over the machinery, or those whose duty it was to operate it. The defendant had in its employ a superintendent, who seemed to have general charge of its business, and of the men in its employ, and -the employes appear by the evidence to have had assigned to them their respective duties, and it nowhere appears that the company had invested Griffin with any general power or authority, either over the employes or the operation of the machinery in its mills. Under these circumstances, the evidence discloses that Griffin, who, it must be assumed, was a coemploye with the deceased, carelessly or negligently, and without appearing to have any express authority or direction from the superintendent, set the machinery in motion by turning the water upon the wheel, and thereby caused the death of the plaintiff’s intestate. He was, within the facts of this case, a coemploye and fellow servant with the intestate. Against his negligent acts the intestate took the risk. The rule seems settled that all who serve the same master, work under the same control, derive their authority and compensation from the same common source, and are engaged in the same general business, though it may be in different grades or departments of it, are fellow servants, who take the risk of each other’s negligence. Mele v. Canal Co., (Super. N. Y.) 14 N. Y. Supp. 630. In this case the court held that “prima facie the servants of a common master employed in the railway service are fellow servants, and neither has a cause of action for the negligence of the other.” Boldt v. Railroad Co., 18 N. Y. 432; Malone v. Hathaway, 64 N. Y. 5; Vick v. Railroad Co., 95 N. Y. 267; Mahoney v. Railroad Co., (Sup.) 19 N. Y. Supp. 511; Webber v. Piper, 109 N. Y. 499, 17 N. E. Rep. 216. The machinery in the mill upon which plaintiff’s intestate was engaged to work was incomplete, and he was at the time of the accident engaged in completing it. Ho inherent defect existed in the machinery itself, and no harm could have come to him but for the improper setting of the machinery in motion, while he was exposed. It is not [1074] therefore a case of unsafe and improper machinery furnished by the employer to the employe by which the employe is injured, but rather a case of the improper use by a fellow servant of machinery suitable and proper for the purpose for which it was intended, and it was by the improper use of the machinery itself that the injury ■ resulted to the deceased. We are therefore of the opinion that the decision of the learned judge was correct, and that the injury resulted, not from any negligence on the part of the defendant, but from the negligence or improper conduct of a fellow servant. The judgment should be affirmed, with costs.