161 N.Y. 301, Murray v. Dwight

Citation:161 N.Y. 301
Party Name:J. FRANCIS MURRAY, an Infant, by CATHERINE MURRAY, his Guardian ad Litem, Respondent, v. HARVEY A. DWIGHT, Appellant.
Case Date:January 09, 1900
Court:New York Court of Appeals

Page 301

161 N.Y. 301

J. FRANCIS MURRAY, an Infant, by CATHERINE MURRAY, his Guardian ad Litem, Respondent,


HARVEY A. DWIGHT, Appellant.

New York Court of Appeal

January 9, 1900

Argued December 8, 1899.

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Randall J. Le Boeuf for appellant. The relation of master and servant existed between the defendant and plaintiff at the time and in respect to the very transaction out of which the injury arose. (Wyllie v. Palmer, 137 N.Y. 248; McInerney v. D. & H. C. Co., 151 N.Y. 411; Higgins v. W. U. T. Co., 156 N.Y. 75; Murray v. Currie, L. R. [ 6 C. P.] 26; Rourke v. W. M. C. Co., L. R. [ 2 C. P.] 205; Hasty v. Sears, 157 Mass. 123; Powell v. Construction Co., 88 Tenn. 692.) The defendant, as plaintiff's master, did not fail in the performance of any duty which he owed to Murray by reason of that relation, and plaintiff could not, therefore, recover. (Kimmer v. Weber, 151 N.Y. 422; Sisco v. L. & H. R. R. Co., 145 N.Y. 296; Perry v. Rogers, 157 N.Y. 251.) Plaintiff at the time of the injury was a co-servant engaged with the other servants of Dwight in a common employment, and if any negligence other than his own contributed to the injury it was that of a fellow-servant. (Besel v. N.Y. C. & H. R. R. R. Co., 70 N.Y. 171.) The position cannot be taken, under the pleadings or otherwise, that the mere happening of the occurrence was such as to charge the defendant with negligence, or require an explanation on his part. (Dobbins v. Brown, 119 N.Y. 188; Clark v. Riter, 39 A.D. 598; Allen v. Banks, 7 A.D. 405; Dennenfeld v. Baumann, 40 A.D. 502.) Plaintiff was guilty of negligence which contributed to and caused the injury, and for that reason, apart from any other theories of the case, cannot recover. (Piper v. N.Y. C. & H. R. R. R. Co., 156 N.Y. 224; Lafflin v. B., etc., R. R. Co., 106 N.Y. 136.)

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Edwin Countryman for respondent. The plaintiff was not a fellow-servant with defendant's employees. (1 S. & R. on Neg. [ 5th ed.] § § 162, 225; Laugher v. Pointer, 5 B. & Cr. 579; Quarman v. Burnett, 6 M. & W. 497; Jones v. Liverpool, L. R. [ 14 Q. B. D.] 890; Jones v. Scullard, L. R. [ 2 Q. B. D. 1898] 565; Michael v. Stanton, 3 Hun, 462; Gerlach v. Edelmeyer, 15 J. & S. 292; Bradley v. N.Y. C. R. R. Co., 3 T. & C. 288; Blake v. Ferris, 5 N.Y. 48; W., etc., R. Co. v. Farver, 111 Ind. 195; Story on Agency, 561-565; Huff v. Ford, 126 Mass. 24.) Even assuming that the fellow-servant rule and the ad hoc doctrine would apply, had the accident happened during the operation of the work, the defendant cannot claim the benefit of either, as the accident did not occur in the performance of any work with which the plaintiff had any connection whatever. (1 S. & R. on Neg. [ 5th ed.] 428, § 234; State v. M. W. Ry. Co., 63 Md. 433.) Plaintiff was free from contributory negligence. (Dohn v. Dawson, 90 Hun, 271.)


The plaintiff, a young man about twenty years of age, received a personal injury from the falling of a pulley block at the defendant's warehouse on the 24th day of March, 1894.The evidence tended to show that the block fell by reason of the negligence of the defendant's general employees, or some of them, and the question presented at the trial was whether the plaintiff was a co-servant with them within the rule that relieves employers from liability in cases of accidents of this character. The trial court held that the plaintiff was a co-servant of the person whose negligence caused the injury, and the complaint was dismissed. On appeal to the Appellate Division this judgment was reversed and a new trial granted, and in this condition the case comes here.

The opinion of the learned court below contains a clear and concise statement of the facts concerning the accident, the substance of which we may safely adopt. The defendant was the owner of a warehouse in which there was a hoisting apparatus for the purpose of hoisting and lowering heavy

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articles from one story to another. There is a projection at the roof in which there is an iron wheel over which a chain passes down in front of the building and about a foot and a half therefrom. This chain at the roof passes into the building and around a drum and thence to the back part of the building. An endless rope is attached to the drum, by means of which a man in the building may operate it and hoist or lower the chain outside. If it is desired to use horse power in hoisting, a pulley block is attached to the door post in the lower story and another pulley block with tackle is hooked on the chain and drawn up to the top of the building. A rope connected with the upper block passes down and over the lower pulley and thence into the building, and to this a horse is attached. In operating the tackle the horse moves forward and backward within the building.

The plaintiff was the servant of a truckman and was sent by his master with a horse to hoist at the defendant's warehouse. The goods to be moved from the first to a higher floor in the warehouse were barrels of lime. The plaintiff, on arriving at the warehouse with his horse, stopped near the curbstone in front of the door while other men in the employ of the defendant were putting in place the pulley blocks and tackle. The upper pulley block was hooked on to the chain and was being drawn up to its place by one of the men operating the drum inside. When the block was nearly up the plaintiff was told to go in, and as he started to do so, the block fell upon the plaintiff. He had not worked there before and, as the testimony tended to show, knew nothing about the apparatus for hoisting. He had nothing to do with placing it in position. The horse belonged to the truckman, the plaintiff's master, and the plaintiff was paid by him. The work of moving the barrels of lime from the lower to a higher story was under the direction of the defendant's foreman.

The question when and under what circumstances the servant of a general master becomes the servant of another is often difficult of solution. There is some apparent conflict in the authorities, due more to the difficulty of applying the

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legal principle to ever-varying facts than to any discord with respect to the principle itself. Moreover, the rule is subject to some distinctions that are not always easy to state in such a way as to render the result in every case so plain as to command acquiescence, or to give to the decision the character of a conclusive authority. Counsel upon both sides have, in the argument of this case before us, subjected the leading authorities to a very careful and able examination that has thrown so much light upon the question that we have been greatly aided in arriving at what appears to us to be the proper conclusion. We think the judgment of reversal in the court below is correct. The opinion of Judge MERWIN contains such a clear statement of the law as deduced from the numerous cases, and such a judicious application of it to the facts, that we would not attempt to add anything to his reasoning but for the fact that the learned counsel for the defendant has attempted to prove by an argument, which bears all the marks of industry and discrimination, that it is in conflict with two or three recent cases in this court. Before referring to these cases, it may not be amiss to point out a feature of the controversy peculiar to this case and which distinguishes it from many, if not all of those cited.

The relation of master and servant is often confused with some other relation. The mere fact that one person renders some service to another for compensation, expressed or implied, does not necessarily create the legal relation of master and servant. There are many kinds of employment which are peculiar and special, where one person may render service to another without becoming his servant in the legal sense. A servant is one who is employed to render personal services to his employer otherwise than in the pursuit of an independent calling. The truckman who transports the traveler's baggage or the merchant's goods to the railroad station, though hired and paid for the service by the owner of the baggage or the goods, is not the servant of the person who thus employs him. He is exercising an independent and quasi public employment in the nature of a common carrier, and his

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customers, whether few or many, are not generally responsible for his negligent or wrongful acts, as they may be for those of other persons in their regular employment as servants. A contract, whether express or implied, under which such special jobs are done or such special services rendered, is not that of master and servant within the law of negligence. (Jackson A. Iron Works v. Hurlbut, 158 N.Y. 34; 1 Parsons on Contracts, 101-109.)

The plaintiff beyond all doubt was in the general service of the truckman and so was his general servant. In that capacity he represented his master and, hence, was a truckman himself. In the pursuit of that calling he was directed by his master to render special services to the defendant, not in moving goods from the store or warehouse to a place of shipment, but from the lower floor of the warehouse to an upper floor. It so happened that in this particular job it was not necessary to use the truck, but it was necessary to use the horse in order to furnish power to hoist the goods. Neither the time, nor duration of employment, nor the rate of compensation, was the subject of any express contract with the defendant, and from the nature of the case there could not well have been any well-defined agreement on the subject. The employment in its scope and character was in no respect essentially different from that which every truckman enters into with his numerous customers in the course of a day as a carrier of baggage or goods. The fact that the plaintiff detached...

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