Judges: Hardin, Rumsey, Talcott
Filed Date: 1/15/1881
Status: Precedential
Modified Date: 11/12/2024
It is a familiar principle that, as between the defendant and strangers, the defendant is responsible for the negligent acts of its servants while in the discharge of the duties of their employment. This is elementary. (2 Kent’s Com., 259, 260.) It is now equally well settled that the master who has used proper care in the selection of his servants, is not liable to one servant for the negligence of another servant while engaged in the same common employment. (Sherman and Redfield on Negligence, sec. 86, and authorities there cited.) The reasons for this rule are well stated by Chief-Justice Shaw in Farwell v. Boston and W. R. R. Co. (4 Metc., 57), that the servant enters upon the performance of the duties he assumes with full knowledge of 'all the risks, and adjusts his com
While this rule is admitted fully in this State, much difficulty exists as to its application, and the books contain many cases upon that subject. In this case the learned judge before whom it was tried evidently did not think the doctrine had any application, for he held as matter of law that Dana, plaintiff’s intestate, was not a co-employe with Keiffer, the telegraph operator, whose negligence caused the injury. He instructs the jury that the first question for their consideration was whether “ the peremptory order given to the wildcat train to proceed from Auburn to Cayuga regardless of No. 50, without detaining No. 50 at Cayuga, or otherwise securing its safety, was a negligent act on the part of the defendant,” and if they do so find, the defendant’s negligence is made out. This charge is clearly correct if Dana and Kieffer were not co-employes, for in that case the defendant is directly responsible for the negligent act of Kieffer and all its consequences to Dana. As there was no question but that the negligent act of Kieffer was the cause of the collision and there was no question of contributory negligence on the part of Dana, the plaintiff, under the charge, was entitled to a verdict as a matter of course. The consideration of the question whether Dana and Kieffer were co-employes was taken entirely from the jury by the direct charge that they were not so, and the determination as to the correctness of this portion of the charge necessarily includes the several requests to charge in regard to that relation and the refusals of the court to do so, which were excepted to by defendant. The practice of running extra or wildcat trains over the Auburn branch of the defendant’s railroad was of long standing, was well understood by Dana and all its employes engaged in running trains. As such extra trains would necessarily interfere to some extent with the movement of regular trains over the road, the movements of all trains which may be affected by such extra trains are directed by telegraphic dispatches sent from the superintendent’s office at Rochester. To insure safety and guard
The risk which resulted in the death of Dana, in view of these authorities, we think must be held to be one which entered into the contemplation of Dana when he entered upon his work, and the
The judgment and order should be reversed and a new trial ordered, costs to abide event.
Order and judgment reversed and new trial ordered, costs to abide event.