73 N.Y. 38, Booth v. Boston & Albany Railroad Co.

Citation:73 N.Y. 38
Case Date:March 19, 1878
Court:New York Court of Appeals

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73 N.Y. 38




New York Court of Appeal

March 19, 1878

Argued Feb. 4, 1878.

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Geo. W. Miller, for appellant. The negligence of starting the train with an insufficient number of brakemen could not be attributed to defendant. (Sammon v. N.Y. and H. R., 62 N.Y. 251; Rose v. N.Y. and H. R., 58 Id., 217; Malone v. Hathaway, 64 Id., 5; Cochrane v. N.Y. C. and H. R., 60 Id., 133.)

Matthew Hale, for respondent. Defendant was liable because of its negligence in not supplying the train with a sufficient number of brakemen. Flike v. B. and A. R. R. Co., 53 N.Y. 551, 554.)

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It is no answer to an action by a servant against the master, for an injury caused by the master's negligence, that the negligence occurred in the course and conduct of the business in which the servant was employed. For his own negligence the master is responsible to his servant equally as to any other person. The servant on entering the employment of the master does not assume the risks of the master's negligence. He assumes the risk of the negligence of a co-servant; but the reason of the rule, which exempts the master from liability to one servant for the negligence of another ceases, and has no application when the master's own negligence caused the injury.

The rule that the master is not liable for the negligence of a co-servant does not, however, go to the extent of exempting him from liability in every case, when it appears that he did not himself do or direct the doing of the negligent act; or even when the immediate negligence is that of a person who in some sense was the co-servant of the person injured. There are certain duties which concern the safety of the servant which belong to the master to perform, and he cannot rid himself of responsibility to his servant for not performing them, by showing that he delegated the performance to another servant, who neglected to follow his instructions, or omitted to do the duty intrusted to him.

The duty of the master to select competent servants and to provide safe implements and machinery for the use of his servants belongs to this class. The rule that the servant takes the risks of the service "supposes," says Lord CRANWORTH, "that the master has secured proper servants and proper machinery for the conduct of the work." (Bartonshill Coal Company v. Reid, 3 Macq., 275.)From the nature and extent of the particular business, or the fact that the principal is a corporation and can only act through agents, it may be necessary for the master to commit the selection of servants, and the purchase and providing of machinery to servants and agents; but the duty to use reasonable care in performing these acts always remains the duty of the master,

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and negligence in performing it is his negligence, whether he acted himself or by others. If the immediate negligence in these cases is that of an agent or servant, and a co-servant is injured thereby, the law imputes the negligence to the master and the master is liable the same as if the injury had been sustained by a stranger. The case of Flike, Admin'r, v. The Boston and Albany R. R. Co. (53 N.Y. 550), was decided upon an application of the principle that the master is liable to the servant for an injury caused by his own negligence. The difficulty in that case was in determining whether the act of sending out the first train with an insufficient number of brakemen was the act of the defendant. If it was, then upon the facts found by the jury, the verdict was right. There was wrong, injury and damage which sustained the action. The duty of dispatching trains and manning them was confided, as the evidence then appeared, to Rockefeller, and it was made his duty to see that they were supplied with a sufficient number of brakemen. The negligence shown did not consist in any omission by the company to provide, by proper rules and regulations for the proper equipment of the train;...

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