Perry v. Lansing

Boardman, J,: An examination of the evidence satisfies me that the question of the negligence of the defendants was properly submitted to the jury and its verdict must be conclusive. We cannot say the verdict was not in accordance with the truth, and hence on this ground we cannot reverse the judgment below under the decision of Finch v. Parker (49 N. Y., 8). The more important and difficult objection relates to the charge of the learned judge on the subject of concurrent negligence of the plaintiff and those on board of the tug Bliss. It was held that plaintiff was not responsible for any negligence on the part of the tow boat Stone. This exception is not urged upon the argument, nor •do I see that it could be successfully, since I find no proof of any negligence on the part of the officers of the Stone, unless it was due to, and arose from, the acts and negligence of those on board ■of the Bliss. The learned judge then holds “ that the negligence and carelessness of the Stone will not prevent the plaintiff from recovering, — 36 — except so far as the negligence of the Stone was occasioned by the' want of pirudence and care or proper skill, on the part of the plaintiff, as the pilot of the boat Bliss.” And again “the question is, whether there was any omission on the part of this plaintiff as the-pilot of the boat, or of Sickles, who it seems to me was in the same position of the plaintiff, having been placed there by his direction.” The exceptions to these portions arc especially urged upon our consideration. It must be remembered that the Stone had been hired by the excursionists on the barge Harvest Home. The Bliss was not aiding in the towing. She was lashed to the Harvest Home, and. both were being towed by the Stone. Hence I think it follows, that the officers of the Stone were not the servants of the plaintiff or of the owners of the Bliss, and the latter were not responsible for the negligence of the former. (Silliman v. Lewis, 49 N. Y., 384.) The jury by its verdict has determined that neither the plaintiff nor Sickles were guilty of personal negligence. If the other persons in the employ of the Bliss were guilty of negligence contributing to the injury, would such fact prevent a recovery by plaintiff ? In other words, were the employees on the Bliss, so far identified with, and under the control of, plaintiff as to make him liable for their negligence ? The rule applicable as between servant and master is well known. The servant cannot recover of the master for injuries occasioned by a co-servant in the same general employment. That risk he assumes when he enters iuto' the employment. But has this principle any application to an* action for injuries against a third person not the master ? Though the servant may not maintain an action against his master for an injury arising from the negligence of a fellow servant, does it follow that he may not have an action against a third person for au injury occasioned by such third person’s negligence, because some co-servant has been guilty of negligence contributing to the injury ? No such rule can be found so far as I have been able to discover. Between the master and servant there is an implied, contract that the servant shall assume the risks of the employment. For this reason the liability does not exist. But there is-no such relation between the servant and a stranger. As between them, the servant has not waived his remedy, if a co-servant has. — 37 — been guilty of contributory negligence. The proximate cause of the injury is the act of the stranger. Why should he be shielded from damages because some person, no way related to him, has failed to exercise the requisite care to prevent plaintiff's injury ? The owner of the tug might not be able to recover for its injury, because the negligence of his servants contributed thereto and their negligence is imputed to him. But the plaintiff does not stand in the same relation to the party doing the injury to him personally as well as to the tug. The employees of the Bliss are not co-servants of, or as to the defendants. They are strangers to defendants, and each is entitled to protection against the negligent acts of defendants unless he personally has done, or failed to do, some act which has aided in producing the injury. (Smith v. N. Y. and H. R. R. Co., 19 N. Y., 127, 132; Young v. N. Y. C. R. R. Co., 30 Barb., 229.) The other cases cited do not seem to me to solve the difficulty. In the Arctic Ins. Co. v. Austin (69 N. Y., 470), it is held that the owner of a cargo in a canal boat, being transported for hire by a carrier, cannot recover against a third party for loss occasioned by his act, where the carrier is guilty, of contributory negligence. The reasons given for this decision plainly distinguish it from cases of injury to innocent third persons, as to whom no ■opinion is expressed. In Robinson v. N. Y. C. and H. R. R. R. Co. (66 N. Y., 11), a female sustains an action against the defendant for an injury caused by its negligence, though the person with whom she rides by invitation was guilty of contributory negligence. The negligence of the driver is not imputed to the passenger. To the same effect are Chapman v. New Haven R. R. Co. (19 N. Y., 341); Webster v. Hudson River R. R. Co. (38 id., 260); Colegrove v. New Haven and N. Y. & H. R. R. Co.’s (20 id., 492); Metcalf v. Baker (11 Abb. [N. S.], 431); affirmed in Com. of Ap., Apl. 1874, 57 N. Y., 662). An intimation to the contrary, in Brown v. N. Y. C. R. R. Co. (32 id., 602) is obiter and explained in Robinson v. N. Y. C. and H. R. R. R. Co. (supra). The case of Armstrong v. Lancashire, etc., R. R. Co. (12 Eng. Rep. [Moak’s], 508; Law, Rep., 10 Ex., 47) is decided on the authority of Thorogood v. Bryan (8 C. B., 115). But this latter ■case is questioned in its important aspect in Webster v. Hudson — 38 — R. R. R. Co., and in Chapman v. N. H., etc. (supra); Sh. & Red. on Neg., § 46, n 5. So far as Armstrong’s Case conflicts with our own authorities above cited we cannot follow it. After all it was in efiect decided that the defendant in that case was not guilty of negligence upon which the action could be sustained. Without further reference to the authorities, I am of the opinion the judge’s rulings and charge were in strict accordance with the decisions of this State, and that no error was committed in those respects. It was proper to prove that plaintiff was a man of family. It is proper for-the jury to know, in a general -way, the situation and condition in life of a party or a witness. The reception of such evidence is uniform and constant, within the experience of every lawyer accustomed to try causes. The questions put to Brown and Gardner were improper for two reasons: First, because, as we have seen, the conduct and management of the Stone could not impair the plaintiff’s right of recovery in the absence of negligence on his part; and secondly, because the question to Brown called for his opinion as to the proper verdict to be rendered by the jury, and neither question involved any scientific or technical inquiry requiring the opinions of experts or others. (Carpenter v. East. Tr. Co., 71 N. Y., 574, 579.) The other exceptions to the rulings upon admission or rejection of evidence are not of a character requiring special notice. I am of the opinion that no errors were committed in the ruling upon the trial or in connection with the charge, for whiclTa new trial should be granted. The judgment and order appealed from should therefore be affirmed, with costs. Learned, P. J., concurs; Bocees, J., dissents. Learned, P. J.: When a person is injured by the negligence of another, he ought to recover the damages he has sustained. To this rule there is the exception that, if the injured party has by his own negligence helped to cause the injury, then he shall not recover. The reason for this exception appears to be plain, and ought to be — 39 — distinctly understood. It is that a person should not be compensated for injury which he has himself caused. If his own negligence, therefore, was one of the causes (in the legal sense of that word), which produced the injury, he is himself to blame. If he had not been negligent, he would not have been injured. This, I understand to be the reason for the doctrine (so called) of contributory negligence. That doctrine does not mean that, when the negligence of each of two persons contributes' to injure a third person, he has no right of action against either. It means that one shall not be compensated for injury to which his own negligence contributed. On the trial of this case the learned justice charged that negligence on the part of the crew of the Bliss, other than the personal negligence of the plaintiff, or of Sickles, whom he had put at the helm, would' not defeat the plaintiff's action. The plaintiff was pilot of the Bliss. Personal negligence on his part would of course include any negligence in giving .proper orders to the crew, or to such of the crew as were under his control. It would include every failure of duty of the plaintiff. It would not make him responsible for what he could not prevent, or for what he did not cause. It seems to me that this is sound. I cannot see why the negligence of some one of the crew of the Bliss (which, by the supposition, the plaintiff could not prevent) should prevent him from recovering against the defendants for the injury occasioned by their negligence. It may be true that the plaintiff could not recover against the owners of the Bliss for the injury caused, in part, by one of his co-employees. That is, because the maxim, respondeat superior, as a general rule, does not apply between co-employees. But if an employee, by his negligence, injures a co-employee, the one who docs the injury must himself be liable; although the common master of both may not be liable. If the plaintiff's injury had been occasioned, exclusively, by the negligence of some one of the crew of the Bliss, I do not see why that one of the crew would not be liable. It is only as regards the liability of the common master that an employee is said to assume the risks of the business. The actual negligence of a co-employee must make such co-employee himself liable for the injury which he has occasioned. — 40 — If the injury to the plaintiff came from the joint negligence of the defendants and of one of the plaintiff’s co-employees, without any negligence on his own part, there is no reason why the defendants should not be liable for their wrongful act. See on this point Massoth v. D. and H. C. Co. (64 N. Y., 524); Dyer v. Erie R. R. (5 W. D., 430); Robinson v. N. Y C. and H. R. R. Co. (66 N. Y., 11). The appellant insists that the rule, above referred to, that an employee cannot recover against his employer for injury by a co-employee covers this case, and urges that the policy of the rule is to enforce greater caution on the part of employees. But, as I think, that rule has no application directly, or by way of argument. It must be noticed that it has never been hold .that an employer is not liable for his own negligence. The question is, when shall he be made liable for the negligence of others •— that is, for the negligence for those under him ? Generally, as to outsiders, he is liable for the negligence of his employees. But, as to employees, he is generally not liable for the acts of their co-employees. This is a limitation of his liability for the acts of others — a limitation of the rule respondeat superior. That rule never meant that the inferior was not himself liable for his own acts of wrong-doing.. If the plaintiff was injured by the negligence of the defendants, and of one of the crew of the Bliss, then we have a case where two or more persons have contributed to cause the injury to the plaintiff, himself free from blame. His right of action against one of these persons is not taken away by the fact that he cannot sue the master of the other — that master being himself entirely without fault. For these reasons I agree with the conclusion of the foregoing opinion of my brother Boardman.