156 N.Y. 75, Higgins v. Western Union Tel. Co.

Citation:156 N.Y. 75
Party Name:PETER HIGGINS, Respondent, v. THE WESTERN UNION TELEGRAPH COMPANY, Appellant.
Case Date:May 13, 1898
Court:New York Court of Appeals
 
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156 N.Y. 75

PETER HIGGINS, Respondent,

v.

THE WESTERN UNION TELEGRAPH COMPANY, Appellant.

New York Court of Appeal

May 13, 1898

Argued January 27, 1898.

COUNSEL

Jacob F. Miller, George H. Fearons and Rush Taggart for appellant. The relation of master and servant must be shown to exist between the defendant and the persons whose acts or omissions caused the injury before any liability can be established. No such relation was shown between Joseph Algar, who is charged with the negligence, and this defendant, and the judgment should be reversed. ( Engel v. Eureka Club, 137 N.Y. 103; Wyllie v. Palmer, 137 N.Y. 257; McInerney v. D. & H. C. Co., 151 N.Y. 411; Butler v. Townsend, 126 N.Y. 105; Hilliard v. Richardson, 3 Gray, 349; De Forest v. Wright, 2 Mich. 368; King v. N.Y. C.

Page 76

& H. R. R. R. Co., 66 N.Y. 184; 14 Am. & Eng. Ency. of Law, 745; Pars. on Cont. 101; Gravatt v. State, 25 Ohio St. 168; Murray v. Currie, L. R. [ 6 C. P. Div.] 26; Olin v. Whitney Marble Co., 103 N.Y. 300; Rourke v. White Moss Colliery Co., L. R. [ 2 C. P. Div.] 205.)

Chauncey S. Truax for respondent. The relation of master and servant existed, and was complete between defendant and Algar. The defendant is, therefore, liable under the doctrine of respondeat superior. (Thomp. on Neg. 892, 893; Blake v. Ferris, 5 N.Y. 48; Michael v. Stanton, 3 Hun, 462; Quarman v. Burnett, 2 M. & W. 500; Gerlach v. Edelmeyer, 15 J. & S. 295; affd., 88 N.Y. 645; Annett v. Foster, 1 Daly, 507; Butler v. Townsend, 126 N.Y. 105; Cosgrove v. Ogden, 49 N.Y. 255; Crockett v. Calvert, 8 Ind. 127; Story on Agency, § § 453a, 453b; Richardson v. Van Ness, 53 Hun, 267; Jones v. Mayor, etc., L. R. [ 14 Q. B. Div.] 890; Weyant v. N.Y. & H. R. R. Co., 3 Duer, 360; Sprowl v. Hemmingway, 14 Pick. 1; Fletcher v. Braddick, 5 Bos. & Pull. 182.)

O'BRIEN, J.

The plaintiff sustained a personal injury on the 7th day of December, 1891, while engaged in using the elevator in defendant's building at the corner of Broadway and Dey street in the city of New York. The negligent act to which the injury is to be attributed was committed by a general servant of the defendant, whose duty it was to manage and operate the elevator.

The question in this case is whether the defendant is responsible under the doctrine of respondeat superior for the negligence of its servant under the circumstances of the case. There is practically no dispute with respect to the facts, and, briefly stated...

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