Scott v. Sweeney

Landon, J.: Within the cases of Crispin v. Babbitt (81 N. Y., 516), and Slater v. Jewett (85 id., 63), I think it should have been held as a matter of law, upon tbe evidence, that Simpson, tbe foreman in charge of tbe defendant’s yard and workmen employed therein, was, with respect to tbe act of lowei’ing tbe boom of the derrick, whereby plaintiff was injured, a fellow servant of tbe plaintiff. [293] These cases point out with some clearness the test running through the previous cases, whereby we can determine whether the act, with respect to which negligence is alleged, is the act of the master or of the servant. Briefly stated, if the act is one which from its nature and character belongs or ought to belong to the department of the master, then it is the master’s act, no matter to what inferior agent or servant the authorization, not the execution when authorized, of the act is intrusted. If, however, the act done or omitted is in the execution of the proper details of the principal work which has been by the master directed to be done, such execution of proper details is the act of the servant, no matter how high the rank of the subordinate who performs the labor. Illustrations taken from the cases may enable us to see more clearly the rule and its application. Whether train No. 50 shall be detained at Cayuga or be sent on to Auburn, is within the department of the master (Sheehan v. N. Y. C. & H. R. R. R. Co., 91 N. Y., 334), but the detail work in taking it, if ordered, within the servant’s department. So the giving a telegraphic order as to where two trains should meet was held in Slater v. Jewett to be the work of the master. The order was properly given and came to the hands of the conductor, who ought to have given it to the engineer, but forgot to do it. It was contended that the conductor was, for the purpose of communicating the order, pro hao nice the master. The court said no, the making of the order was the master’s work, the delivering of it by the servant a detail of execution — the work of a servant. In Crispin v. Babbitt, the foreman who “ represented the defendant and stood in his place,” carelessly turned on steam whereby the plaintiff was injured; it was held to be servant’s work. Suppose instead of turning it on himself, a servant had done it by his direction, it is impossible to see that the rule could have been changed. It would still have been an executive detail, a matter of mere work or labor. And such seems to be the case under review. When Simpson said “lower the boom,” he was carrying out his part of the details of his master’s work, no less than the workman who turned the crank. He was operating the derrick, a work needing one servant to be watchful of details and so to direct the labor of others as to make it useful to tbeir common employer, in moving stone from the yard to the mill. Whether a derrick, [294] or tbis particular derrick, was a proper machine to be used may be a question for the master to decide, but the work of operating it is servants’ work. If therefore the plaintiff was injured by Simpson’s negligence in operating the derrick, or in moving it out of the way, lie was injured by the negligence of a fellow servant. I advise a reversal of the judgment. Leaened, P. J., concurred.