
    John Russell v. The Hudson River Railroad Co.
    The rule that a servant or agent cannot sustain an action against his employer for an injury sustained by reason of the negligenee of another servant or agent in the common employment, does not apply to the case of a day laborer, whose contract is only from day to day, and who, by arrangement of the Company, is carried to and from his work.
    In such a case, if an injury occurs from the exclusive fault of an engineer of the train to such a laborer on his passage from his work, the company will be liable. The laborer is not then in the discharge of any service which his contract with the employer imposes upon him.
    Qitere, if the rule is applicable where the employment of the injured servant is wholly distinct from that of the one doing or causing the injury.
    (Before Duna, Boswobth and Slosson, J. J.)
    October 1, 27, 1855.
    Case upon a verdict for the plaintiff for $225, subject to the opinion of the court, on a case to be made to be heard in the first instance at General Term, with liberty to either party to turn the same into a bill of exceptions, or case containing exceptions, and •with liberty to the court at General Term to dismiss the complaint, if of the opinion that no action would lie on the facts proved.
    The action was, to recover damages for injuries sustained by the plaintiff from being thrown between two cars, in consequence of the train being precipitated into Spuytendevil Creek. The complaint alleges, that the cars were run at a dangerous rate of speed on a curve; that the engineer had not the requisite skill, of which the defendants were aware, and was of a rash disposition, and that such unskilfulness and rashness caused the accident, from which he received great bodily injury, and was put to large expenses.
    The plaintiff was in the employ of the defendants, and had been working at a gravel-pit on the day of the accident. He was on a platform car, on his return to the city, after his day’s work. The custom was to carry the workmen who lived in the city to their work, and bring them back to that place, without a charge.
    Considerable testimony was produced, as to the cause' and nature of the accident and the negligence of the engineer, which, from the points decided it is needless to state.
    
      It appears that there was no other engagement between the plaintiff and the company than that of a workman from day to day.
    The defendants moved for a nonsuit, on the ground that the plaintiff was in the employ of the defendants, and that the injury was occásioned by the negligence of another employee of the company.
    This application was denied, and the defendants excepted.
    The defendants’ counsel then requested the Judge to charge the jury to the same effect. This was refused, but the Judge stated that any verdict which' the jury might render, if in favor of the plaintiff, would be taken subject to the opinion of the court, as to whether the defendants were liable to the plaintiff, he being in the employ of the company at the time of the accident.
    The Judge then charged the jury—•
    
      First. That the plaintiff was not entitled to recover for his injuries from the accident in question, unless it arose from the negligence of the engineer, without any negligence on his own part occurring to produce the injury. That there seemed to be no doubt the injury was caused by the negligence of the engineer. .
    
      Second. That the plaintiff was only entitled to recover his actual damage, such as the expense of medical attendance and medicines, and for loss of time and personal suffering, and such as might result from the permanent nature of the injury, if any; but not any exemplary damages, unless the jury believed that the engineer was incompetent, and the officers of the defendants knew of, or had reason to suspect such incompetency.
    To such instructions the plaintiff’s counsel excepted, and requested the Judge to charge— , . .
    
      First. That if the jury found that the plaintiff was, at the time of the accident, not in the employ of the defendants, he was entitled to recover.
    
      Second. That if the plaintiff was not engaged or employed in that branch of defendants’ business which consisted of the running of cars, engines, or trains, the defendants were liable.
    The Judge refused so to charge, and the plaintiff’s counsel excepted.
    A verdict was then found for the plaintiff, as before stated.
    
      
      W. A. Robertson, for the plaintiff.
    
      W. Fullerton, for the defendants.
   By the Court. Duer, J.

It cannot he denied that the decision of the Court of Appeals in the case of Coon v. the Syracuse and Utica R. R. Co., (1 Selden, p. 492,) has established the law that a servant or agent cannot maintain an action against his employer for injuries sustained by him, through the negligence of another servant or agent engaged with him in the same common employment, and if this rule were applicable to the present case, it would be our plain duty to dismiss the complaint. But we are clearly of opinion that the rule is not applicable, since, as we understand the facts of the case, the plaintiff was not in the employ of the defendants when, through the negligence of their engineer, the accident happened by which he was injured. It appears from the evidence, and was admitted upon the argument by the counsel for the defendants, that the plaintiff was employed by the day, and when the work of each day was performed, was under no obligation to return on the following. There was a separate contract, therefore, for each day, and it was a part of this contract that when the day’s work was over, the plaintiff should be transported in the cars of the defendants, without charge, to his residence in this city. When the accident happened, the plaintiff had performed his day’s work, had done all that he was bound to do, and the defendants, in the execution of their contract, were transporting him to his residence. Hence, although the contract between the parties, not having been fully performed by the defendants, was not terminated, it seems to us manifest that the relation between them of master and servant, which the contract created, had wholly ceased, since there were no longer any services, which the defendants had a right to exact and the plaintiff was bound to render. His taking passage in the cars was not in the discharge of any duty which he owed to the defendants, and. in the discharge of which he was subject to their authority. It was as much a voluntary act as in the case of an ordinary passenger, and as he had paid for his passage by the work he had performed—(for his free transportation was a part of his day’s wages)—we see no reason to doubt that his rights were in all respects the same as those of an ordinary passenger, and, consequently, the defendants just as responsible for any injuries which, through the negligence of their servants, he might sustain. To sustain the defence, we should be obliged to hold that the relation of master and servant continues, even when the servant has performed all his stipulated work, so long as any part of his stipulated wages remains unpaid; a proposition which, when thus stated, the learned counsel for the defendants readily admitted could not be maintained.

The case before us is, therefore, widely distinguishable from the recent case in the Supreme Court of Pennsylvania, to which we were referred, (Ryan v. Cumberland Valley R. R., Law Mag., April, 1850, p. 253,) for in that case, the very ground of the decision was, that the plaintiff, when he sustained the injuries for which the action was brought, was in the actual employment of the defendants, and in the discharge of a duty which his contract of service imposed on him.

Placing our decision upon the ground that when the cause of action occurred, the relation between the parties, which is set up as a defence, no longer existed, we deem it unnecessary to consider the other questions that were raised and discussed upon the hearing. We think, however, with Mr. Justice Gardiner, that it may reasonably be doubted, whether the rule, that exiempts the common employer from all liability, can be justly applied, when the employment of the servant, who is injured, is wholly distinct from that of the servant by whose negligence the injury was occasioned, (1 Selden, p. 495.) The decision in the Court of Appeals leaves this an open question.

The plaintiff is entitled to judgment upon the verdict, with costs.  