Bushby v. New York, L.E.&W.R. Co.

Decision Date29 November 1887
Citation14 N.E. 407,107 N.Y. 374
PartiesBUSHBY v. NEW YORK, L. E. & W. R. CO.
CourtNew York Court of Appeals Court of Appeals

OPINION TEXT STARTS HERE

Appeal from general term, supreme court, Fifth department.

Action by Joseph H. Bushby to recover damages sustained by reason of the begligence of the New York, Lake Erie & Western Railroad Company, while in its employ as brakeman. The facts appear in the opinion.

E. C. Sprague, for appellant.

A. Hadden, for respondent.

DANFORTH, J.

The defendant, with knowledge that it was to be used for the carriage of lumber over its tracks and by its servants, delivered at its station in Webster, to one Lewis, a platform car. To the sills of this car on each side six permanent loops or iron pockets were securely bolted. These were purposed and intended for the reception of stakes or standards, in order that, so equipped, the car would be adapted for carrying a loose load, such as lumber or the like. The stakes were not furnished with the car. Lewis had never before loaded a car. On this occasion he put a stake in each of four pockets on either side of the car, and piled on and arranged the lumber under the direction of the defendant's station agent, who regulated the length of the stakes. The car was then added to a freight train on which the plaintiff was employed as brakeman, and in the performance of his duty he was necessarily upon the car while the train was going around a curve at a high rate of speed. At that moment one of the stakes broke, and, by reason thereof, he, without fault on his part, was thrown with the lumber upon the track, and by the fall severely injured. Upon examination it was found that the stake in question was made ‘of very poor white wood,-brash, brittle wood, and partially decayed.’ ‘The outside was spongy like a cork where it had been shaved off with an axe.’ ‘It was a dead stick, and had lost its strength and was punky.’ ‘It had broken off almost even with the top of the stake hole.’ It did not appear that the defendant had made any rules or directions as to the inspection of such cars, or that any agent of the company, except as above mentioned, superintended the putting in of the stakes. The station master testified that he had ‘no printed instructions in regard to loading the cars, or anything on that subject,’ or in regard to seeing how the stakes were, but only generally that he wanted to see that everything was in order. He had no special instructions. The defendant, however, relies upon its ‘system.’ That was to let the shipper load and stake, and, as to inspection, the evidence relied upon in its behalf only tends to show that if, in the general performance of the duties of their employment, the station agent found anything out of the way, he should correct it, or, if the conductor or brakeman saw a defect, he should report it to the station master. No special duty was imposed on either in regard to inspection, nor direction given as to its manner. Care in all matters was enjoined upon them as a part of a servant's duty to his employer; nothing more.

The defendant moved for a nonsuit, upon the grounds that no cause of action has been established by the evidence; that no negligence on the part of the defendant has been established by the evidence, such as would sustain the action; that whatever negligence may have been shown, if any, in this case is the negligence of co-employes of the defendant for which the defendant is not responsible; that the plaintiff's own negligence contributed to his injury in such a way as to defeat his right of action.

The plaintiff asked to go to the jury upon the questions: (1) Whether the company should not have made and promulgated rules in respect to the inspection of the cars that were to transport the lumber, in regard to the stakes? (2) Whether the company exercised due care in furnishing safe and suitable machinery, means, and appliances for the running of this car? (3) Whether the defendant was guilty of any negligence which contributed to the injury sustained by the plaintiff? (4) Whether the plaintiff himself was guilty of any fault or negligence on his part which contributed to the injury? The court expressed the opinion that whether the plaintiff was guilty of any negligence which contributed to the injury would be a question for the jury, if the case were submitted to them, but refused to submit any question to the jury, and granted the motion for a nonsuit, and the plaintiff's counsel excepted. The exceptions were ordered to be heard at the general term in the first instance. That court was of opinion that the case was one for a jury, and directed a new trial. Against that decision the defendant appeals and makes the following points:

First. That the stakes were not appliances or machinery within the rule which requires a master to furnish with reasonable care, proper and adequate machinery or other appliances for the proposed work; but, on the contrary, the defendant says they ‘were appliances furnished and employed by the shipper in loading the car with lumber to be transported by the defendant.’ Personal negligence is the gist of the action, and the duties referred to in the rule cited are those of the master, and he cannot evade the responsibilities incident thereto by delegation of them to another. Whoever does the act by his appointment or permission represents, and as to that act is, the master. To hold otherwise would exempt a corporation from all liability, and we must at the outset determine to which of a load. The car actually furnished indicated Did the stakes form a part of the car, or were they an incident to the load? It was proven that the transportation of lumber was a considerable part of defendant's business. We may take notice of the fact that such freight is common to all railways. It is in evidence, also, that the stakes were necessary and usual in preparing for such a load. The car actually furnished in by the iron sockets where such stakes should be placed and were arranged and prepared for them. Had the car, when sent to the shipper, been equipped with stakes, and so ready for use, I suppose no one would doubt that, for any accident arising from the unfit material of which they were made, or from imperfect construction, the owner would be liable. If the iron socket had broken from a known defect in the iron, or from a known imperfect connection with the car, and the plaintiff from that cause received the injury from which he now suffers, or if the sill of the car to which the socket was fastened had given way by reason of inherent weakness, the result would be the same. This consequence...

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    ...... 66 P. 823; Anderson v. Great Northern Ry. Co., 15. Idaho 513, 99 P. 91; New York etc. Mining Syndicate & Co. v. Rogers, 11 Colo. 6, 7 Am. St. 198, 16 P. 719;. Johnson v. State, ... alter ego of the master, for whose negligence the. master is liable. ( Bushby v. New York, L. E. & W. R. R. Co. , 107 N.Y. 374, 1 Am. St. 844, 14 N.E. 407.) As to. the ......
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    ...rule is not involved. 1 Bailey's Personal Injuries, page 347; McIntyre v. Boston & M. R. Co., 163 Mass. 189, 39 N.E. 1012; Bushby v. New York, etc., 107 N.Y. 374; Blakely Mill Co. v. Garrett, 97 F. 537; Coats v. Boston & Maine R. Co., 153 Mass. 297; Laning v. New York Central R. Co., 49 N.Y......
  • Bien v. St. Louis Transit Company
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    ...Cooley on Torts (2 Ed.), 647-667; Mechem on Agency, secs. 657-667; Brothers v. Carter, 52 Mo. 373; Dowling v. Allen, 74 Mo. 13; Bushly v. Railroad, 107 N.Y. 374; Parker Railway, 109 Mo. 362, 19 S.W. 1119; Schaub v. Railroad, 106 Mo. 74, 16 S.W. 924. (3) A vice-principal, then, is one who st......
  • Pitman v. Yazoo & M. V. R. Co
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    ...(C. C. A.), 192 F. 509; Yazoo & M. V. R. R. Co. v. McCaskell, 118 Miss. 629, 79 So. 817. We do not think any of these cases are in point. The Bushby case, was an action by the servant against his based on the failure of the latter to furnish him a safe place to work. A car of lumber was in ......
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