Hart v. New York Floating Dry Dock Co.

Where the master places the entire charge of his business in the hands of an agent, the neglect of the agent in supplying and maintaining suitable instrumentalities for the work required is a breach of duty for which the master is liable (Mullan v. Phila. & Southern Mail S. S. Co., 78 Penn. St. 25; 21 Am. R. 2, cited with approbation in Crispin v. Babbitt, 81 N. Y. 516-521; Corcoran v. Holbrook, 59 Id. 517). A corporation necessarily places the entire charge of its business in the hands of its agents, and as the jury has found that there was a breach of duty in this regard, if it could be established that the ruling of the court was wrong in respect to the position of McCann, nevertheless the verdict should be sustained. We think that this case, in respect to the duty that the master owes his servant as to the acts of McCann, is distinguishable from the cases of Crispin v. Babbitt (81 N. Y. 516), and McCosker v. L. I. R. R., (84 N. Y. 77). To entitle the defendant to a new trial he must affirmatively establish that the verdict was wrong in both branches of the case. This, after careful examination, we think he has failed to do, and therefore, the motion for a new trial is denied.”

[After stating the facts as above.] The fundamental error into which, as it seems to me, the learned judge who tried this case below, fell, was in leaving it entirely to the jury to determine what acts and duties the defendant was required to perform and discharge as principal, instead of holding, as a matter of law, that “the duty of the defendant was to supply its servants with suitable and safe machinery and appliances, with competent *466and skillful co-workers, and to make and promulgate sufficient rules and regulations for the conduct of the business in its ordinary run and for any extraordinary occasions that might be reasonably anticipated ” (Slater v. Jewett, 85 N. Y. 61, 73), and then asking the jury to find whether the defendant had failed in the performance of its duty in any of these respects. The fact that the defendant’s business is raising, repairing and again lowering vessels does not require it to take charge of the details of this business as principal, or make it liable to a servant for the negligence of a fellow-servant who is put in charge of such details.

It might as well be left to a jury to say whether or pot it is the duty of a railroad company to conduct trains as principal, so that every railroad conductor could be found by the jury to be the alter ego of the company.

The defendant can be held liable only for neglect of its duty in respect to the matters which I have quoted from the opinion of Chief Justice Folgker. Whether or not McCann was the alter ego of the defendant was a matter of law to be determined by the court, not a matter of fact to be decided by the jury. The decision in Mullan v. Phil. & South. Mail S. S. Co. (78 Penn. St. 25 ; 21 Am. R. 2), was approved in Crispin v. Babbitt, only to the extent of this proposition : “Where the master places the entire charge of his business in the hands of an agent, the neglect of the agent in supplying and maintaining suitable instrumentalities for the work required, is a breach of duty for which the master is liable.” The words which I have put in italics were so put by Judge Rapallo in his opinion (81 N. Y. 521), and he goes on to say: “ These were master’s duties. In so far as the case from which the citation is made goes beyond this, I cannot reconcile it with established principles.” “

Was McCann the alter ego of the defendant so that *467his negligence was the negligence of the defendant, or was he only the fellow-servant of the plaintiff’s intestate, for whose negligence in this case the defendant is not responsible ? This question is not to be determined by the relative grade or rank of McCann and Hart (Crispin v. Babbitt, 81 N. Y. 516; Slater v. Jewett, 85 N. Y. 61; McCosker v. L. I. R. R. Co., 84 N. Y. 77.)

In Crispin v. Babbitt, a person known as “business and financial man,” in general charge of the business, the defendant being absent most of the time, was held to be a co-employee in regard to the business out of which the accident befell.

In Slater v. Jewett the conductor of a train, having general charge of it, was held to be fellow-servant of the fireman who was killed by his negligence.

In McCosker v. L. I. R. R. Co., the yardmaster who employed and discharged drillers (of whom the deceased was one), made up trains, distributed cars in and about the yard and repair shops, was held to be fellow-servant of the driller, who worked under his command and was killed by his negligence.

According to the testimony before us McCann was only foreman of sectional dock No. 3. It was no part of his duty to supply machinery or to employ or discharge men; that was all done by the president of the company, who devoted himself exclusively to the general management of the business; but even if it had been, under the decision in Crispin v. Babbitt, McCann was not, at the time of the accident, engaged in work which the law requires the defendant itself to do, but was the fellow-workman of the intestate.

in his dissenting opinion in that case, says this distinction, that a person could at the same time be in one respect the alter ego of the superior, and in another a fellow-workman with an employee, was never recognized before; however that may be, it is recognized now. And though Crispin v. Babbitt was *468decided by a bare majority of the court of appeals, the case of McCosker v. L. I. R. R. Co. was a unanimous decision following the rule adopted in Crispin v. Babbitt.

It is quite apparent that the accident in this case was occasioned by McCann’s failure to properly center the vessel before re-raising her, or in attempting to re-raise her at all, under the circumstances ; it was a thing which had never before been attempted. That is to say, McCann used bad judgment in the matter.

In Crispin v. Babbitt the “business and financial man” let on steam and started the machinery when he ought not to have done so. In McCosker v. Long Island R. R. Co., the yardmaster signaled the engine “ negligently and at the wrong time.” And in Slater v. Jewett the conductor neglected to direct the engineer to stop at a station when telegraphed to do so.

If, in these cases, defendants were excused from liability for the gross negligence of persons who were in charge of the business in hand, in the absence of their superiors, how can the defendant be held responsible for the bad judgment of its foreman about a mere matter of detail ?

The cases relied on by the respondent to take this case out of the rule laid down in Crispin v. Babbitt (Flike v. Boston & Albany R. R. Co., 53 N. Y. 549 ; Booth v. the same, 73 Id. 38 ; Fuller v. Jewett, 80 Id. 46) are easily distinguishable. The superior was held responsible in each one of these cases, because it deputed to an agent something which, as principal, it was bound to do, within the rule I have quoted as stated by Judge Folger.

In the first two cases, which arose out of the same accident, it was held to be the duty of the railroad, company to supply suitable machinery and sufficient help, and if it delegated either of these duties to an agent, no matter what Ms grade or position, Ms act in *469that regard was the act of the defendant; and so, the railroad company was held responsible for an accident which arose because a heavy freight train was sent out with only two brakemen when it should have had three, and would have had three, but for the failure of a subordinate to awake the third, who had overslept .himself.

It is worthy of remark that Allen, Grover and Folger dissented from the decision in the Flike case. That decision, however, does not apply to the case before us, because there was no proof or claim on the trial which we are reviewing that sufficient help was not supplied by the defendant.

In Fuller v. Jewett an engineer had been killed by the explosion of a boiler, which, the judge says in his opinion, “ it is quite clear, upon the evidence, was in a dangerous condition at and prior to the time of the accident.” And it was held that, inasmuch as it was the duty of the corporation to keep its.machinery in proper condition, if it delegated that duty, the neglect of the person to whom it delegated it could be imputed to the company.

Under these cases, it seems to me quite clear that McCann was not the alter ego of the defendant, and that the learned judge below erred in refusing so to charge, and in charging that the defendant was responsible for acts of negligence imputable only to McCann.. For this error there should be a new trial.

Nor was the error cured by the finding of the jury that ratchets and pawls were out of order at the time the accident occurred. There was little, if any, evidence to sustain such a finding. It was based mainly upon conjecture. Nor does the evidence show, nor did the respondent’s counsel claim in his very elaborate and able argument before us, that the injury arose from any such cause.

*470Judgment and order reversed and new trial ordered, with costs to abide the event.

Sedgwick, Ch. J., and Freedman, J., concurred.