Chapman v. Erie Railway Co.

E. D. Smith, J.

The new trial was granted at special term upon the express ground that the plaintiff’s husband and Allison, the telegraph operator of the defendant, were fellow-servants of a common master, engaged in the same general business, and that the liability to injury from negligence of a co-servant was a risk that each servant took upon himself in the service of such common master. Following the case of Warner v. Erie Railway Co., 39 N. Y. 468, the views of the learned judge were doubtless in accordance with those expressed in the opinion in that case as generally received, that no class of officers of a corporation below the board of directors, at least, represented the corporation as masters to such an extent that their acts of omission or commission could bind the corporation as in the relation of a master to a servant, as between the respective agents, officers, servants or employees of such corporation. One of the head-notes in the case of Warner v. The Erie Railway Co., supra, as the case is reported, asserts that “ the only ground of liability of a master to an employee from injuries resulting from the carelessness of a co-employee which the law recognizes, is that which arises from the personal negligence or want of proper care and prudence in the management of its officers, or in the selection of its agents or appliances.”

The rule as thus stated is obviously of small consequence as a protection to the servants or employees of a corporation, when it is considered that a corporation acts entirely through officers and agents and there can be no other personal negligence committed, by or imputed to, it except the negligence of such officer or agent, and when it is held also that all the agents and employees of a corporation are fellow servants of a common master, it is difficult to see why, under such rules, corporations are not virtually absolved from all the common-law liability of a master to take care of-his servants and protect them from unjust and unreasonable danger and injuries resulting from the negligence of others. But the recent case of Laning v. N. Y. C. R. R. Co., 49 N. Y. 531, shows that the present court of appeals is receding from this extreme ground. This case asserts a sounder and more reasonable rule. Judge Folgee, who gives the opinion of the court, says: “The duty of the master to his servants is to use reasonable care to provide and employ none hut competent and skillful servants, and to discharge from his service on notice thereof any who fail to continue such.

“And applying the rule to the case in hand, we are of the opinion that the defendant was negligent toward the plaintiff in retaining Westman in its service after his habits of drinking to drunkenness were known to Colby, its general agent for hiring and discharging men of the class of Westman.”

These views apply to this case. The analogy between them is quite clear and perfect. Within the rule of this case Fisk, and in his absence Oolligan, was the proper representative of the defendant and bound the corporation, as Colby did in the case of Laning v. N. Y. C. R. R. Co., and upon the same principle. Fisk employed Allison, the telegraph operator, and, the jury have found, knew his habits of drunkenness; and his knowledge was the knowledge of the defendant, and his declarations and admissions were properly admissible to prove such knowledge, as was held in respect to admission of Colby, the agent of the defendant in said case of Laning. This question disposes of the chief point presented on the argument, and leads to the reversal of the order granting a new trial. The charge of the judge at the circuit, that Fisk was to be treated as the tnaster and executive officer of the defendant, was entirely sound and correct.

It asserts the only practical rule that can be applied in such cases in order to require and make corporations perform their proper common-law duty as masters to their servants and employees, and to the public, as I have had occasion previously to assert, in Bissel v. N. Y. C. R. R. Co., 29 Barb. 613; Perkins v. Same, 24 N. Y. 221; and Warner v. Erie Railway Co., 49 Barb. 575. And in Wright v. The Central R. R. Co., 25 N. Y. 572, 1 dissented with another member of the court, from the decision, on the precise ground that the negligence of Upton, the chief engineer, whose duty it was to employ engineers, was to be deemed the negligence of the corporation as master.

The case upon the whole, I think, was properly disposed of at the circuit, and none of the exceptions taken to the rulings and decisions of the circuit judge are well taken.

The order granting a new trial should, therefore, be reversed and a new trial denied, with costs.

Order reversed and new trial denied.