Ross v. New York Central & Hudson River Railroad

E. DaewiN SMITH, P. J.: If the intestate, Ross, had been an ordinary passenger, having paid his fare for his transportation over the defendant’s raiiroad to the place of his destination at the time of the accident, the action and the recovery could, doubtless, be sustained upon the ground of the negligence of the conductor of the train on which he was riding, in starting said train at the precise juncture when the westward bound train arrived at Lyons and was passing between it and the depot. Upon the principles of public policy, as applicable to public carriers, the carriers of passengers are bound to carry safely, so far as human care and foresight will go, all whom they receive into their cars or coaches, and' are responsible for any, even the slightest, negligence. (Stokes v. Saltonstall, 13 Peters, 181; Story on Bailment [8th ed.], § 601.) The negligence in this class of cases includes the neglect of servants and agents; not only of those engaged in the transportation of the passengers, but in all the subsidiary arrangements and incidents connected with the reception, ingress and egress, delivery and control and care of the passenger. But these principles do not apply to the relation of master and servant inter se. The rule which governs this relation is based upon contract simply, implied in law (Farwell v. Boston and W. R. R., 4 Metcalf, 49) where there is no express agreement. The master is doubtless liable for his personal negligence, like all other tort feasors,, upon the rules or principles which govern in actions of tort. (Ryan v. Fowler, 24 N. Y., 410.) But aside from the personal negligence of the master, the servant has no [494] right of action against him, except for the violation of the implied contract, that he will exercise ordinary care not to expose such servant to unreasonable risks or dangers. (Noyes v. Smith, 28 Vermont, 59.) The rule is well stated in Gilman v. Eastern R. R. Cor. (10 Allen, 238), as follows: “ It is well settled, both in, England and America, that a master is bound to use ordinary care in providing his structures and engines, and in selecting his servants, and is liable to any of their fellow-servants for his negligence in this regard.” The rule is asserted or stated in the same way, in substance, in Warner v. Erie R. R. Co. (39 N. Y., 533), and Wilson v. Merry (1 Scotch Appeals in House of Lords, 326). The cases in this State in which the servant has been allowed to recover against the master for injuries received from the neglect of some other servant of such master, have been based, generally, upon the non-fulfillment, by the master, of his duty to or contract with the servant, within the rule above stated, or are sustainable, if at all, within the, principle asserted in such rule of liability or duty on the part of the master. Some contrariety of opinion has existed in respect to the question, whether the master could absolve himself from all responsibility to his servants by committing the general charge of his duties as master, as with corporations, to some executive officer or agent. This question is now finally settled in the Court of Appeals, in the case of Laning v. The N. Y. Central Railroad Co. (49 N. Y., 521), and also in the case of Flike v. Boston and Albany Railroad Co. (53 id., 549), where the rule is asserted, that where the master commits such control and management of his affairs, in any particular department, to a general superintendent, or other officer or agent, such officer or agent stands in the place of the master, and his acts or neglects or omissions’ of duty, are those of the master, in respect to the other employes of such common master. But the principle still remains, as Judge AlleN states it in Wright v. The N. Y. Central R. R. Co. (25 N. Y., 564), that personal negligence in such case is the gist of the action as against the master, the negligence of the agent acting for and in the place of the master being the negligence of the master. This principle must be limited, I think, to such acts as men, ordinarily, are competent to discharge, and not to those requiring skill, or artistic or scientific knowledge, [495] Aside from this question of personal negligence of the master, actual or thus imputed, there is no ground or principle upon which the servant can main tain an action against the master for injuries received from the negleet of any fellow servant or other person. In Laning v. N. Y. Central R. R. Co. (supra) the action was held to lie to recover for the neglect of the agent of the defendant, intrusted with the duty of employing and discharging subordinate servants, agents or workmen, in retaining a drunken foreman in charge of work, in consequence of which the plaintiff sustained injury. In Chapman v. Erie R. R. Co. (1 N. Y. S. C., 526) a drunken telegraph operator was retained in the employment of defendant by its superintendent with knowledge of his habits. The plaintiff in this case was an employe of the defendant. He was an engineer and surveyor engaged in work for the defendant, connected with the laying of new tracks on their railroad. His death was caused by the negligence of the conductor on one of the defendant’s trains, upon which he was being transported, free of charge, from Medina, where he lived, to Jordan, where he was employed in such work. Thei’e is no proof or pretense that there was any neglect in the employment of such conductor, or that he was ever supposed, or was in fact, incompetent or unfit for his place. It is difficult to find any basis in the case for the action arising out of any neglect of the defendant, or of any officer or agent acting in its place, in such relation or position as that his acts or neglects were those of the defendant as master. But it is urged on behalf of the plaintiff, that Ross was not a co-employe with the conductor whose negligence caused his death, within the purview of the cases which hold that the master is not responsible for an injury to a fellow-servant occasioned by the negligence of another servant engaged in the same general business. But there is no ground in the case for this exception to the general rule. The plaintiff was as much a co-employe with the said conductor, under the employment of a common master, as was the plaintiff in the case of Boldt v. The N. Y. Central R. R. Co. (18 N. Y., 432) or in Coon v. The Syracuse and Utica R. R. Co. (6 Barb. 231; S. C., 1 Selden, 492). The rule exempting the master from responsibility to one servant for injury sustained by him from the negligence óf another [496] servant, does not rest or depend upon the intimacy of their relations to each other in their particular work, respectively. It extends to all employes of a common master engaged in carrying on any general work or enterprise. It rests upon the single ground above stated, that the master impliedly contracts with each and every employe to subject them, respectively, to no unreasonable risks from the incornpetency of any of their fellow workmen. If workmen are employed together in any particular branch of labor, and their knowledge of each other, and of the state of the machinery or implements furnished for their common use, is as well known to them as to their master, this fact may furnish another element of exemption from responsibility on the part of the master, if they consent to continue to work with incompetent fellow-servants, or with defective or insufficient implements or machinery. Corporations act necessarily through agents and officers more- or less numerous, among whom there is no inequality of right or duty as respects their common master. They are all fellow-servants, except so far as such master has substituted some particular officer or agent in its place, to perform its duty to its employes. Such officer or agent stands in the place of the corporation as master, and binds it by his acts and neglects. We are referred to several cases in other States, where a different rule is asserted. In Ryan v. The Chicago and N. W. R. (60 Illinois, 171) and Lake v. The Chicago B. and Q. R. R. Co. (52 id., 401), and Fitzpatrick v. The New Albany R. R. Co. (7 Indiana, 438), and others, it is held that a railroad company is liable to a servant for an injury occasioned by the negligence of another servant, when the duties of the latter, in connection with which the injury happened, were not in common, nor in the same department with those of the injured servant, and where the negligence of the injured servant did not contribute to the injury. These cases, it seems to me, overlook or mistake the true principle upon which the master’s liability in such cases rests. All the servants of a common master stand to him in the same relation ; they severally undertake to work for the same master, and take and assume, on their part, the risk of all dangers ordinarily incident to their employment. The master, impliedly, undertakes on his part to exercise ordinary care to protect them from all unreasonable [497] risks and dangers pertaining to sucb work, resulting from tbe employment of incompetent servants in other departments of his work. He is only liable for his neglect of ordinary care in this particular; he is not an insurer. If a servant of a railroad corporation divests himself of his character as a servant or fellow-servant, and becomes a paying passenger on the cars of the railroad, he will, doubtless, acquire and possess all the rights of a passenger, or of any third person unconnected with the master. Upon these views, the plaintiff should have been nonsuited at the Circuit, or the judge should have instructed the jury, as requested, that if there was any negligence on the part of the defendant’s servants or agents, such negligence was the negligence of a co-employe of the plaintiff’s intestate, and therefore she could not recover. The judgment should therefore be reversed, and a new trial granted, with costs to abide the event. . Present — Smith, P. J., Gilbert and MekwiN, JJ. Judgment and order reversed, and new trial granted, costs to abide event.