Citations
- 5 N.Y. 492
Full opinion text
Gardiner, J.
It has been decided, in England, and in Massachusetts and some other states of the Union, that, where different persons are employed by the same principal, in a common enterprise, no action can be sustained by them against their employer, on account of injuries sustained by one agent through the negligence of another. (Priestly v. Fowler, 3 Mees. & Welsb. 1; Farwell v. Boston & Worcester Railroad Co., 4 Metc. 49; Murray v. S. Carolina Railroad Co., 1 McMullan 385.)
In Brown v. Maxwell (6 Hill 594), the case from Massachusetts was cited and approved by the learned judge who delivered the opinion of the supreme court in that case. *The good sense of the principle, when applied to individuals engaged in the same service, is sufficiently obvious; there may be more doubt of its justice, in reference to those whose employments are distinct, although both may be necessary to the successful result of a common enterprise. The case before us cannot be distinguished from that in Metcalf. To the elaborate opinion of Chief Justice Shaw, nothing can be added, without danger of impairing the force of his reasoning. It is only necessary to express my concurrence, generally, in the views there suggested, which, if adopted, must be held as decisive in this case.
The ground taken upon the argument by the counsel for the plaintiff, that there was testimony tending to show that the stake-train, when the accident occurred, was running in accordance with the regulations of the defendants, and, therefore, the injury was the act of the corporation, and not of its agents, is not sustained by the evidence in the bill of ■ exceptions; and if it was, the point was not made distinctly upon the trial. The judge put his decision, in terms, upon the ground that the defendants were not responsible to the plaintiff, for the negligence of the conductor of the stake-train. If the plaintiff’s counsel wished to submit to the jury the question now raised, that the conductor was merely complying with the commands of his principals, and that negligence was not to be imputed to him, but to the defendants themselves, a request to that effect should, under the circumstances, have been made to the judge. As it was, he was left to suppose, that the cause was intended to be tried, upon the grounds, suggested by him in his decision. I think, that the judgment of the supreme court should be affirmed.
Foot, J.
The decision of this cause depends on a very important principle, one which has been unfolded and brought to view, within the last twenty years, and principally, by the new business commenced within that period, and now extensively *prosecuted, of transporting persons and property by steam on railways. It is this: that an employer is not liable to one of his agents or servants, for the negligence of anothér of his agents or servants, engaged in the samo general business. Was this principle sought to be applied, for the first time, in the present action, I should deem it my duty, not only to examine it in all its bearings, test its soundness by all the means at my command, and endeavor to reach a correct conclusion, but also to assign in full my reasons. This duty has, however, been already performed, ably and learnedly, by three eminent judicial tribunals, viz., the court of exchequer in England, the court of appeals of South Carolina, and the supreme court of Massachusetts. (Priestly v. Fowler, 3 Mees. & Welsh. 1; Murray v. S. Carolina Railroad Co., 1 McMullan 385; Farwell v. Boston & Worcester Railroad Co., 4 Met. 49.) They all concur in sanctioning the principle, and I fully acquiesce in their judgment. Mr. Justice Beardsley has also expressed his approbation of it, in the case of Brown v. Maxwell (6 Hill 594). The supreme court of Massachusetts has re-affirmed it, in the case of Hays v. Western Railroad Corporation (3 Cushing 270), and the English court of exchequer, in the case of Hutchinson v. York Railroad Co. (5 Exch. 343). It must now be considered as settled, and hereafter to form a part of the common law of the country.
Judgment affirmed.
See, to the same point, Tinney v. Boston and Albany Bailroad Co. 52 N. Y. 632; Ross v. New York Central Railroad Co., 5 Hun 488; s. c. 7. N. Y. 617 ; Treadwell v. New York, 1 Daly 123; Whaalen v. Mad River Railroad Co., 8 Ohio (N. S.) 249. In an action by an employee against his employer, for an injury sustained by negligence, the plaintiff must establish affirmatively, that the negligence was that of the defendant, and not of a fellow-servant: Rose v. Boston and Albany Railroad Co., 58 N. Y. 217; Sammon v. New York and Harlem Railroad Co., 62 Ibid. 251; Besel v. New York Central Railroad Co., 70 Ibid. 171.