Hauser v. Metropolitan Street Railway Co. , 58 N.Y.S. 286 ( 1899 )

MacLean, J.

This action was brought to recover for- injuries done to a horse by falling through the earth between the pavement and a bridge placed over an opening in West Broadway, a public street in the city of Hew York, opened under a permit from the department of highways for railway improvements- for the defendant company, for which a contractor did the work. For that injury, action does not lie against the- defendant company, but only against the workman, whose personal act or omission caused the damage, and against the contractor, who selected and controlled him. As was observed by Littledale, J., in Laugher v. Pointer, 5 Barn. & Cres. 547, the workman was not the servant of the contractor, and of - the contractor’s employer, for the law does not recognize a several liability in two principals who are unconnected. It is the “ rule in ascertaining who is liable for the acts of a wrongdoer, that you must look to the wrongdoer himself or to the first person in the ascending line who is the employer and has control over the work. You cannot go further back, and make the employer of that person liable.” Willes, J., in Murray v. Currie, 6 L. R. C. P. 24, 27. This is the doctrine stated in Blake v. Ferris, 5 N. Y. 48, which has been criticised for the application,- but' not for the doctrine. The doctrine is probably older than the phrase respondeat superior, used as the expression of a legal principle, or the maxim qui facit per alium facit per se, said in high places to have, been “ handed down from the Roman Code,” but' which may not easily be found in the Code, of Justinian, who, however, elsewhere regarding the action allowed against a person carrying on one of. certain trades,' for happenings upon his premises, but not through his personal fault, does say: “ Although the action be not established against him ex maleficio or ex contractu, yet as he is in a way guilty of a fault, because he employed the services of bad people, he seems to be liable quasi ex maleficio; the action allowed in these cases is an action upon the fact and it lies in favor of but not against the heir.”

The judgment should be reversed, with costs.

Leventritt, J., taking no part.