85 N.Y. 214, Ochsenbein v. Shapley

Citation:85 N.Y. 214
Party Name:JACOB F. OCHSENBEIN, Respondent, v. MARTIN W. SHAPLEY et al., Appellants.
Case Date:April 26, 1881
Court:New York Court of Appeals
 
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Page 214

85 N.Y. 214

JACOB F. OCHSENBEIN, Respondent,

v.

MARTIN W. SHAPLEY et al., Appellants.

New York Court of Appeal

April 26, 1881

Argued Mar. 23, 1881.

Page 215

COUNSEL

O. W. Chapman for appellants. Defendants' servant having gone beyond the scope of his authority in testing the boiler they were not liable for his acts. (Cavanah v. Dinsmore, 12 Hun, 465; Quinn v. Power, 17 Id. 102, 105; Stone v. Hills, 45 Conn. 44; Story v. Ashton, L. R., 4 Q. B. 476; Rounds v. R. R. Co., 64 N.Y. 129, 136; Mott v. Ice Co., 73 Id. 543.) When the defense is that the wrongful act was not within the general scope of the servant's employment, and so not within the express or implied authorization of the master, it is for the court to pass upon the competency of the evidence and for the jury to give effect to it. (Mott v. Consumers Ice Co., 73 N.Y. 543, 550;

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Rounds v. D. L. & W. R. Co., 64 Id. 129; Isaacs v. Third Ave. R. Co., 47 Id. 127.)The explosion was caused by the intervention of the servant's will, stepping in to accomplish an individual purpose foreign to, and after he had knowingly passed the limits of, his authority, and defendants were not liable. (Whart. on Neg., § § 134-139-148; Week's Dam. Absq. Inj., § 131; 35 N.Y. 213; Fitzsimmons v. Inglis, 5 Taunt. 535; Ins. Co. v. Tweed, 7 Wall. 52; Shepherd v. Chelsea, 4 Allen, 113; Fitzsimmons v. Inglis, 5 Taunt. 534.) If defendants did not expressly or impliedly authorize Carter's acts after he knowingly passed one hundred and ninety-eight pounds, then they are no more responsible for what he thereafter did than if he had been a stranger. (Stone v. Hills, 45 Conn. 44; Cavanah v. Dinsmore, 12 Hun, 465; Quinn v. Power, 17 Id. 102, 105; Story v. Ashton, L. R., 4 Q. B. 476; Vanderbilt v. R. T. Co., 2 N.Y. 479; Wright v. Wilcox, 19 Wend. 343.) Whether in a given case the servant's acts are such as to be imputable to the master is at least a question for the jury. (Harrison v. Collins, 86 Penn. St. 153; Fraser v. Freeman, 45 N.Y. 566.) It was at least a question for the jury whether the acts of Carter and the explosion would probably flow from defendant's tort, or if it would naturally or might reasonably be expected to flow from it. (Fraser v. Freeman, 45 N.Y. 566; Webb v. R. W. & O. R. R. Co., 49 Id. 421, 431; Saxton v. Bacon, 31 Vt. 540.) Co-tort-feasors are only jointly responsible so long as all are acting with a common purpose. (Fraser v. Freeman, 45 N.Y. 566, 571.) It should have been left to the jury to say whether the plaintiff was not a mere lounger and not using the street for the purposes of travel, and hence the testing of the boiler was not a nuisance as to him. (Norristown v. Moyer, 67 Penn. St. 355.) The question of contributory negligence should have been left to the jury. (Whart. on Neg., § 300; Warner v. D. L. & W. R. Co., 80 N.Y. 217.)

T. F. McDonald for respondent. The question of contributory negligence was properly taken from the jury, as the

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facts do not establish any other fault of the plaintiff than that of acting upon the presumption that the defendants' foreman would act in accordance with his duties and plaintiff's rights. (Newton v. The N.Y. C. R. R. Co., 29 N.Y. 390, 383; Jetter v. The N.Y. & H. R. R. Co., 2 Keyes, 154; Ernst v. Hudson R. R. R. Co., 35 N.Y. 9, 24, 35; Shearman & Redf. on Negligence, 29, 30, 32; Daily v. N. & W. R. R Co., 26 Conn. 593, 597.)The plaintiff owed to the defendants no duty to provide against the negligence of their foreman. (R. R. Co. v. Jones, 95 U.S. S. C. [ 5 Otto], 439; F. R. R. Co. v. Munger, 5 Den. 255, 267; S. C. affirmed, 4 Com. 349; 34 N.Y. 11; Carrall v. N.Y. & H. R. R. Co., 1 Duer, 571; Ingalls v. Bills, 9 Metc. 1; Loomis v. Terry, 17 Wend. 496; Stokes v. Saltonstall, 13 Pet. 181; 27 Barb. 228; Shearman & Redf. on Neg. 9, § 11; 1 Bosw. 321, 357; 34 N.Y. 9; 76 Id. 125.) The law presumes every one uses ordinary care. Hence, no proof was necessary to establish plaintiff's ordinary care in self-protection. (Shearman & Redf. on Neg. 30, 44, 47; Button v. T. H. R. R. Co., 18 N.Y. 248.) The refusal to submit the question to the jury whether the explosion was not caused by the foreman's fraudulent act was not error. (Gardner v. Hewitt, 3 Denio, 236; 92 Ill. 139, 141; Gildersleeve v. Landers, 73 N.Y. 609, 610; Paige v. Willett, 38 Id. 28; Potter v. Smith, 70 Id. 299.) The foreman's purpose to test thoroughly was not a fraudulent purpose, notwithstanding mistakes or ill-judged or reckless acts, unless he had a purpose to explode the boiler. (Higgins v. I. W. T. & R. R. Co., 46 N.Y. 23, 26; Rounds v. D., L. & W. R. R. Co., 64 Id. 129.) In this case the foreman had the right to test as he did, if he did it for the purpose of doing what he thought his duty to the defendants, and, therefore, the rule applies that "where a party had the legal right to do an act for one purpose and not for another, the law will presume he did it for the lawful purpose." (8 Wend. 175, 182; Mallory v. The Travelers' Ins. Co., 47 N.Y. 54, 55.) In this case it was the duty of the defendants to see that the foreman acted cautiously, and they are not entitled to set up the disobedience of orders by their

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foreman as a defense, even though the agent purposed the injury. (14 How. [ U.S. S. C.] 295; 95 U.S. 291; 16 How. 469; Law of Nuisance [Wood], 541; Thomas v. Winchester, 2 Seld. 397; 6 L. & Eq. 562; Smith v. N.Y. & H. R. Co., 19 N.Y. 130; 10 Weekly Dig. 169.)As the obstruction and the use were not incident to the enjoyment of the street, the law determined the unlawfulness of the obstruction and of the...

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