81 N.Y. 206, Cone v. Delaware, Lackawanna & Western Railroad Co.

• Citation: 81 N.Y. 206
• Date: 01 June 1880
• Docket Number: .
• Parties: WILLIAM CONE, Respondent, v. THE DELAWARE, LACKAWANNA AND WESTERN RAILROAD COMPANY, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 206

81 N.Y. 206

WILLIAM CONE, Respondent,

v.

THE DELAWARE, LACKAWANNA AND WESTERN RAILROAD COMPANY, Appellant.

New York Court of Appeal

June 1, 1880

Submitted Apr. 19, 1880.

Page 207

COUNSEL

Isaac S. Newton for appellant. As between master and servant defendant, in providing machinery, was obliged to use only reasonable care and diligence. ( Laning v. R. R. Co., 40 N.Y. 521, 533; Gibson v. R. R. Co., 63 Id . 449; Wharton on Negligence, § 213; Planck v. R. R. Co., 60 N.Y. 607; Hoffnagle v. R. R. Co., 55 Id . 610; King v. R. R. Co., 9 Cush. 112; see, also, Pierce on American Railroad Law, 296; Redfield on the Law of Railways, § 131, subd. 10; Wright v. R. R. Co., 25 N.Y. 562; Wood's Master and Servant, § 421; Piper v. R. R. Co., 56 N.Y. 630; R. R. Co. v. Webb, 12 Ohio St. 475; R. R. Co. v. Keary, 3 Id . 202; Priestley v. Fowler, 3 Mees. & W. 1; 12 Ohio St. 475.) The negligence of defendant's engineer having been the primary, immediate and promoting cause of the injury it was not liable. ( Booth v. B. & A. R. R. Co., 73 N.Y. 38; Samson v. N.Y. & Harlem R. R. Co., 62 Id . 251; Hayes v. Western Railroad Co., 57 Mass. 270, 272; Wright v. R. R. Co., 25 N.Y. 567, 570, 573;

Page 208

Hoffnagle v. N.Y. C. & H. R. R. R. Co., 55 Id . 608, 612; Wood on Master and Servant, § 426; 15 Hun, 174.)

Scott Lord, Jr., for respondent. The defendant was obliged, by law, to furnish, for the use of its servants, proper, suitable, safe and sufficient machinery, means and appliances, and keep them in a safe and suitable condition, or use due care to that end. ( Corcoran v. Holbrook, 59 N.Y. 519; Laning v. N.Y. C. R. R., 49 Id . 532; Ackerson v. Dennison, 117 Mass. 407; Ford v. Fitch. R. R., 110 Id . 260.) This duty, to furnish a suitable and proper engine for the safety of the plaintiff and its other servants, was an imperative and an affirmative one, which the law imposed upon the defendant itself. (Ford v. Fitch. R. R., supra; Corcoran v. Holbrook, Id .; Flike v. B. & A. R. R. Co., 53 N.Y. 533; Malone v. Hathaway, 64 Id . 5; Siegel v. Shantz, 2 N.Y.S. Ct. [ T. & C.] 353; Booth v. B. & A. R. R., 73 N.Y. 38.) If defendant's engineer was negligent his negligence only contributed to produce the accident in conjunction with the negligence of the defendant, and the defendant was not exonerated. (Booth v. B. & A. R. R., supra; Cayzer v. Taylor, 10 Gray, 274; Shearman & Redf. on Neg., § § 9, 10.)

DANFORTH, J.

As between the plaintiff and the defendant, it was the duty of the latter to furnish its employees for use in the prosecution of its business, good and suitable machinery, and keep it in repair. ( Wright v. N.Y. C. R. R. Co., 25 N.Y. 562; Laning v. N.Y. C. R. R. Co., 49 Id . 521; Flike v. B. & A. R. R. Co., 53 Id . 549; Corcoran v. Holbrook, 59 Id . 519.) It was also its duty to furnish for the management of such machinery, careful and trustworthy servants; and if these conditions were fulfilled, the plaintiff, although injured by the negligence of his fellow-servant, could maintain no action against their common principal. (Wright v. N.Y. C. R. R. Co., supra; Coon v. S. & U. R. R. Co., 5 N.Y. 492.) But that is not the case here. The plaintiff was not injured by the...