
    Barney McKay, Respondent, v. Buffalo Bill’s Wild West Co., Appellant.
    (Supreme Court, Appellate Term,
    July, 1896.)
    1. Master and servant — Fellow servants — Assumption of risk.
    Servants' of one general master whose services co-operate to the conduct and maintenance of his business, although they may differ in kind, are fellow servants, and each assumes the risk of loss from the other’s careless conduct as an incident, of the employment.
    2. Same — negligence.
    A master is only to be held to the exercise of reasonable care to protect his servants, and can not be required to exercise extraordinary caution or to resort to unusual means to avoid an accident.
    3. Same.
    Plaintiff’s personal effects were destroyed • by fire in the car used for the lodging of himself and other employees of defendant by the overturning of an oil stpve used to heat the cal’. The stove was knocked over by one of the employees coming in contact with it while walking backward or by a scuffle between him and others. Held, that the injury was caused by the disregard of ordinary care by plaintiff’s fellow servants, and that defendant was not liable because of its failure to secure the stove to the floor.
    Appeal by the defendant from a judgment for the plaintiff which was rendered by the District Court in the city of Kew York for the eighth judicial district.
    Action by servant against master to recover damages for the destruction of personal property by fire through the alleged negligence of the defendant.
    
      James E. Brown, for respondent.
    S. L. Samuels, for appellant.
   Bisohoff, J.

The plaintiff complained of the loss of his personal effects by a fire which occurred about noon of ¡November 30, 1895, in a car forming a part of the equipment of the defendant company’s itinerant show.' The car was at the time stationary at the defendant’s grounds, Philadelphia, Pa., and was used for the lodging of some of the defendant’s employees, the plaintiff, whose particular duty it was to maintain Order and discipline amongst the occupants, and a number of men engaged to take part in the show. The interior of the car was arranged with berths on each side, leaving an aisle extending from end to end, and to insure the comfort of the occupants during occasionally inclement weather the defendant had provided an oil stove, which was about three feet in height, and supplied with iron props attached to and under the, base in quadrangular position. When in use the stove stood in the center of the aisle. At the time of the fire the stove had been in use for a month or more, and was then in use. The fire was caused by contact with the interior of the car of the ignited oil which had escaped by the overturning of the stove. The litigant's, both conceding that, its presence was known to all the occupants and that the stove was plainly visible, varied in their explanations as to how it came to be' overturned, the plaintiff’s version being that it was done by one McDermott, then also in the defendant’s employ as a watchman at the gates of the show grounds, in walking backwards up to and against the stove,, while conversing with others in the car; the defendant’s, that the stove was upset in a scuffle between McDermott 'and some others of the employees and occupants. •

It nowise appeared upon the trial that the stove was in anything but good, order; that the place of its use was not ordinarily safe and free from the risk of fire, or that the defendant had been remiss in the selection of any of its employees. That the defendant did provide a means of enforcing order and discipline amongst its employees .was apparent from the fact of the plaintiff’s employment for such purpose. Ffom the record, therefore, we are forced to conclude that the defendant’s negligence was predicated of the fact ' alone that it had omitted to securely fasten the stove to the floor of the car, such omission having been repeatedly alluded to by the plaintiff’s counsel. ;

■ We do not approve the conclusion of the court below. The plaintiff and the person or persons who were directly responsible for the accident were engaged in the same general service, worked under the same master or control, and severally derived their authority and compensation from the same source. True, the plaintiff’s services differed in kind from McDermott’s, and both differed'from the services of the other employees. But the plaintiff, McDermott, ánd each of such other employee's, co-operated to the samé end, the conduct and maintenance of the defendant’s business in and about which they were particularly employed. They were, therefore, fellow servants, each having assumed the risk of loss from the other’s careless conduct as an incident of the employment, and no liability whatever attached to the defendant because of such conduct. ‘ Cooley on Torts (2d ed.), 639; Thompson on negligence, 26; 7 Am. & Eng. Ency. of Law, 834.

That the fire was wholly caused by the carelessness of one or more of the plaintiff’s fellow servants was conclusive from the facts in evidence, whether the plaintiff’s or the defendant’s version of thé happening of the accident be accepted -as the correct one. It may. be that if the stove had been fastened to the floor of the car the actual Molence of McDermott’s impact therewith would not have been sufficient to overturn it, but the fact remains, that the accident did result from such impact, under circumstances which admitted of no inference that it was owing to anything but the disregard of ordinary care upon the part of one or more of the defendant’s servants and the plaintiff’s fellow servants.

The master is held to the same degree of care to which his servants are held, reasonable care, that degree of care which an ordinarily prudent person may be expected to exercise under the like circumstances. The defendant was not, therefore, required to exercise extraordinary caution and to resort to unusual means to avoid an accident. It had the right to.assume that each of its servants would be ordinarily vigilant to avoid inflicting damage upon himself or upon his fellow servants. Hence, negligence upon the defendant’s part was not predicable of the fact merely that the accident might not have happened as it did if something that was omitted had been done. The test of negligence is not that the person charged therewith might have avoided the accident by a particular measure to that end, but that he either did what an ordinarily prudent person would not have done, or did not do what an ordinarily prudent person would have done,, under the like circumstances. Leonard v. Collins, 70 N. Y. 90. That the defendant''was censurable in such a regard did hot appear from the. evidence in the record. ' .

Our conclusion to. reverse the judgment - for insufficiency of -the evidence makes the discussion of other grounds urged for the appellant unnecessary. ' • . '

The judgment should be reversed and a new trial had, with costs to the appellant to abide the event.

McAdam, J., concurs. ;

Judgment reversed and new trial ordered, with costs to appellant to abide event.  