Murray v. Usher
| Decision Date | 20 December 1889 |
| Citation | 117 N.Y. 542,23 N.E. 564 |
| Parties | MURRAY v. USHER et al. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from supreme court, general term, third department.
John A. Vance, for appellants.
Nelson L. Robinson, for respondent.
We concur in the opinion below that a case was made for the jury upon the question whether there was negligence in failing to ascertain the defective condition of the platform, and to take necessary means for its reparation. Certain questions of law have been argued by the counsel for the defendants, which we will briefly consider. The judgment could not be maintained against the defendant Lewis if the case presented an exception raising the question that his neglect to perform the duty imposed on him by his employers, to inspect and repair the platform, from time to time, so as to keep it in a safe condition, did not render him liable for injury resulting to third persons from such neglect. Lewis and the plaintiff's intestate were co-servants of the owners of the mill, the former having the general charge and superintendence of the business, under the supervision of the owners, who themselves gave directions from time to time. They instructed Lewis to look after the necessary repairs, and the evidence justifies the inference that in respect to the platform he omitted to perform his duty.
The general rule of respondeat superior servant's negligence, in the master's business, servant's negligence, in the master's business,causing injury to third persons. They may in general treat the acts of the servant as the acts of the master. But the agent or servant is himself liable, as well as the master, where the act producing the injury, although committed in the master's business, is a direct trespass by the servant upon the person or property of another, or where he directs the tortious act. In such cases the fact that he is acting for another does not shield him from responsibility. The distinction is between misfeasance and non-feasance. For the former, the servant is in general liable; for the latter, not. The servant, as between himself and his master, is bound to serve him with fidelity, and to perform the duties committed to him. An omission to perform them may subject third persons to harm, and the master to damages. But the breach of the contract of service is a matter between the master and servant alone; and the non-feasance of the servant causing injury to third persons is not, in general at least, a ground for a civil action against the servant in their favor. Lane v. Cotton, 12 Mod. 488; Perkins v. Smith, 1 Wils. 328; Bennett v. Bayes, 5 Hurl. & N. 391; Smith, Mast. & Serv. 216, and cases cited. But the case was tried upon the theory that there was no distinction between the position of Lewis and that of his co-defendants. The defendants joined in their answer and in the appeal, and no suggestion was made at any point that the action could not be maintained against Lewis, although there was negligence on his part in failing to inspect and repair the platform....
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