49 N.Y. 521, Laning v. New York Cent. R. Co.

Citation:49 N.Y. 521
Party Name:SAMUEL LANING, Respondent, v. THE NEW YORK CENTRAL RAILROAD COMPANY, Appellant.
Case Date:May 28, 1872
Court:New York Court of Appeals
 
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Page 521

49 N.Y. 521

SAMUEL LANING, Respondent,

v.

THE NEW YORK CENTRAL RAILROAD COMPANY, Appellant.

New York Court of Appeal

May 28, 1872

Argued Dec. 20, 1871.

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COUNSEL

Matthew Hale and Samuel Hand for the appellant. A master is not liable to one servant for injuries occasioned by the negligence of another. (Farwell v. The Boston and Worcester R. R. Co., 4 Met., 49; Priestly v. Fowler, 3 M. & W., 1; Brown v. Maxwell, 6 Hill, 592; Wright v. N.Y. C. R. R. Co., 25 N.Y. 562; Wilson v. Merry, L. R., 1 Scotch App., 326; Warner v. Erie Railway Co., 39 N.Y. 468.) This rule applies to a railroad corporation as well as to a person. (Hard v. Vt. Central R. R. Co., 32 Vt., 473; Warner v. Erie Railway Co., 39 N.Y. 468; Wilson v. Merry, supra; Wright v. N.Y. C. R. R. Co., supra; Gallagher v. Piper, 16 C. B. [ N. S.], 669.) The rule includes negligence of a servant in employing workmen for a given work. (Wright v. N.Y. C. R. R. Co., 25 N.Y. 572.)

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A superior is liable only for his own negligence; he cannot warrant the competency of his servants. (Tarrant v. Webb, 5 L. J. [N. S.] Cr. P., 263; 89 Eng. C. L., 795; Warner v. Erie Railway Co., 39 N.Y. 468; Wright v. N.Y. C. R. R. Co., 25 Id., 566, 567.) There was no negligence on the part of defendant in failing to furnish suitable means and materials. (Wigmore v. Jay, 5 Exch., 352; Feltham v. England, L. R., 2 Q. B., 33; Wilson v. Merry, L. R., 1 Scotch App., 326.) Knowledge by plaintiff of the incompetency of his fellow-laborers, or the insufficiency or defectiveness of the machinery, was a bar to his recovery. (Priestly v. Fowler, 3 M. & W., 7; 25 N.Y. 566, 567, and cases cited; Loonam v. Brockway, 3 Rob., 74; Davis v. Det. and Mil. R. R. Co., 20 Mich., 105.) The court erred in admitting Coleby's declarations in regard to Westman. (Luby v. H. R. R. R. Co., 17 N.Y. 131, 133.) The court below erred in deciding it had no power to reduce the damages without granting a new trial. (Russell v. Cown, 20 N.Y. 81; Murray v. H. R. R. R. Co., 47 Barb., 96; 3 Graham and Wat. on New Trials, 1162, 1165; Hodges v. Hodges, 5 Met., 205.)

A. J. Parker for the respondent. The retaining of Westman in defendant's employ, after his incompetency was known to Coleby, was such negligence as rendered defendant liable for the injuries resulting therefrom. (Wright v. N.Y. C. R. R. Co., 25 N.Y. 565; Snow v. Hous. R. R. Co., 8 Allen, 441; Myers v. Smith, 28 Verm., 59; Fifield v. Northern R. R. Co., 42 N. H., 225; Hayden v. Smithfield Manufacturing Co., 29 Conn., 548; Buzzele v. Laconia Co., 48 Maine, 113; Ryan v. Fowler, 24 N.Y. 410; Keegan v. Western R. R., 4 Selden, 175; Connolly v. Patton, 41 Barb., 366; Patterson v. Wallace, 28 Eng. Com. L. R., 50; Warner v. E. R. Co., 39 N.Y. 468.) Knowledge of and notice to Coleby of Westman's intemperance was notice to the company. (Fulton Bank v. N.Y. and Sharon Canal Co., 4 Paige, 137; Ingalls v. Morgan, 10 N.Y. 104; Snow v. Hous. R. R. Co., 8 Allen, 447.) The neglect or want of

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skill of the master's general agent employed in procuring help and machinery is the act of the master. (Gilman v. E. R. R. Co., 10 Allen, 230; Hard v. Verm. Central R. R. Co., 32 Verm. Rep., 473; Ryan v. Fowler, 24 N.Y. 410; Wiggett v. Fox, 36 Eng. L. and Eq. R., 486; Myer v. Smith, 28 Verm. Rep., 59; 5 Am. Law Reg. [ N. S.], 274; Warner v. Erie R. Co., 39 N.Y. 478; Louisville Co. v. Collins, 5 Am. Law Reg. [ N. S.], 265; Little Miami R. R. Co. v. Stevens, 20 Ohio, 415; Hoben v. Burlington Co., 20 Iowa, 562; C. C. & C. R. R. Co. v. Keary, 3 Ohio [N. S.], 201; Redfield on Railways, 386, 390.)

FOLGER, J.

Viewing the case as the jury would have been warranted in doing, it comes in the main to this.

The plaintiff with others, he and they being fellow-servants of the defendant, were engaged in the course of their ordinary service, in the performance of a work for the defendant, to do which it was necessary that there should be put up a scaffold for them to stand upon.

One Westman, the foreman of these men, directed one Churchill and another to put up the scaffold. There is some dispute in the testimony as to who the other was; but the jury might properly have found that one Foreman was the person who, by direction of Westman, helped Churchill. Churchill had been in the employ of the defendant for some months, engaged in different kinds of subordinate service. It is not shown for what particular service, if for any particular service, he was hired by Coleby, who was the agent of the defendant to hire these men. Nor was it shown that he was not skillful and competent to do that for which he was hired, and in fact to do all that was put upon him to do before the task of building this scaffold. Foreman is not shown to have been hired by the defendant. Coleby testified that he did not know him and that his name was not upon the pay-rolls of the defendant. The plaintiff testified that the day of the accident was the first day on which he had seen him there. Churchill could not say that Foreman had worked there after

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the accident; but there was testimony that he was at work on that day, with Churchill, in putting up this scaffold. The jury could rightly find, or infer from what was testified, that Foreman was in fact at work on that day in the defendant's business and that, by the direction of Westman, Foreman and Churchill put up this scaffold. (See Althorf v. Wolfe, 22 N.Y. 355.)The scaffold fell with some of the men upon it, and the plaintiff was seriously injured by the fall, he being among those upon it by direction of Westman.

The scaffold fell from a defect in its construction; this defect was mainly from building it with timbers too small in size, and too poor in quality, being cross-grained and hence weak.

There was no lack of good and proper material, which could have been as readily got at. Indeed, there was an abundant supply of proper material; but the insufficient timbers which were used were taken from the mass by Churchill and Foreman, either from a lack of skill to select better, or from a lack of faculty to perceive the necessity of using stronger, or from a lack of strength to handle and lift larger and heavier timbers, or from these three causes combined. It was, at all events, from the unskillfulnes and incompetency of Churchill and Foreman for this particular work, that the scaffold was so unsafely built that it fell.

The plaintiff knew that the scaffold was built by some of those there engaged at work. He did not know who were the individuals that built it, nor the manner in which it was built, not having seen it while they were building it, nor until by the direction of the foreman he stepped upon it.

Westman the foreman, was a competent man in skill and natural judgment. It does not appear that, at the time he was hired for the defendant, he had acquired any habit which detracted from his competency. At the time of this work, however, he was not temperate in strong drink. The testimony tended to show that he was drunk on the day, and near the time of the accident. The testimony does not show directly, though it is an inference which a jury might make

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fairly, that his condition in that respect was a cause of the injury to the plaintiff; for they might well infer that, if his faculties had been without confusion from strong drink, he would not have put these lads, deficient in judgment and strength, to a work requiring discretion and power, or would have inspected the result of their work before using it.

The plaintiff well knew the habits of Westman in this particular, and knew that he was drunk on this day, not only at the time of the accident, but before, and that he had been drunk on days before that. The testimony tended to show that Coleby had knowledge of Westman's habits. The jury might so have found.

Such being the fact, if the plaintiff has ground of action against the defendant for this injury and the resultant damage, it must be found in the want of skill, and in the incompetency of Churchill and Foreman and in the use of them by Westman for the work of erecting the scaffold. Indeed, it may be stated yet more narrowly, and it must be found alone, in the use of these two young men for this work by Westman. For it is not shown that Churchill was hired for this kind of work, or for work of this importance to others. The...

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