
    Michael E. Tiernay, Resp’t, v. Syracuse, Binghampton, and New York Railroad Company, App’lt.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed February 1895.)
    
    1. Master and servant—Fellow.
    The trainmen of a company, which runs its trains over the road of another company under a contract, whereby the latter’s superintendent arranges all the time tables and controls the conductors of the former company, are not fellow servants with the latter’s employes, though both roads have the same general manager, and the same superintendent on the division where the accident occurred.
    2. Same—Test.
    The test of a master’s responsibility for the acts of his servant is not whether it was done in accordance with his instructions to the servant, but whether the act was done in the prosecution of his business.
    3. Damages—Excessive.
    „ Under the facts of this case, it was held that a verdict for $10,000 was not excessive.
    Appeal from a judgment, entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes.
    
      Louis Marshall, for app’lt; William Kennedy and J. & T. E. Courtney, for resp’t.
   Merwin, J.

This action is brought by the plaintiff to recover damages for personal injuries sustained by him on the 3d day of November, 1890, at a collision between a passenger train of the defendant and a freight train of the Delaware, Lackawanna & Western Bailroad Company at a small station on defendant’s road called “ Bock Cut,” which - is about three miles southerly of the city of Syracuse. At that time the defendant owned, controlled, and operated a line of railroad, extending from the city of Syracuse to the city of Binghamton. The Delaware & Lackawanna Company owned or controlled a line of railroad running southerly from Binghamton, and also a line extending northerly from Syracuse to Oswego. There then existed a contract between the two companies, which was made the 8th January, 1858, by which the defendant agreed “ to allow the use of its road track to the party of the second part [the Delaware & Lackawanna Company] for the purpose of transporting coal thereon, which road track shall be kept in good running order by the party of the first part [the defendant.] ” The Delaware & Lackawanna Company agreed to pay the defendant a certain sum per mile for every ton of coal transported by it (the Delaware & Lackawanna Company) over the defendant’s road, and agreed that it would transport at least a certain amount each year over the road, and would make the defendant’s road its principal avenue for the transportation of coal destined for the Lakes, Canada, and points in Northern & Western New York. For returning empty coal cars over defendant’s road no charge was to be made by defendant, and the Delaware & Lackawanna Company was allowed to carry on the returning cars certain kinds of freight, and pay a certain sum per ton per mile. It was also agreed :

“ That the time-tables of the various trains over the Syracuse, Binghamton & New York Railroad shall be arranged by the superintendent thereof, and so regulated as to afford the party of the second part all needed facilities for .running such number of coal trains daily as the business under the contract shall require; passenger trains in all cases to take precedence, coal and freight trains going north to take precedence of those going south. Conductors of coal trains shall be under the control and subject to the orders of the superintendent of the Syracuse, Binghamton & New York Railroad. The rate of speed of coal trains shall be restricted to ten (10) miles per hour. All turnouts, side tracks, and switches on the line of the road necessary for the convenient transit of the trains shall be furnished by the party of the first part. And the party of the second part hereby agrees to transport over the road coal in equal monthly quantities, as nearly as the season of the year and the natural course of the trade will permit.”

There were other provisions in the contract that need not be referred to here.

The plaintiff, on the Sd day of November, 1890, was in the employ of the Delaware & Lackawanna Company as a brakeman, and had been for a number of years. He was one of the crew of a coal freight train of that company that was made up at Great Bend, in the state of Pennsylvania. It left that place on the morning of that day, and proceded on a railroad of the Delaware & Lackawanna Company to Binghamton, where it took the road of the defendant, and proceeded thereon, under the contract referred to, to Syracuse. There the coal was left. The engine turned round, and started back with a train of empty" cars and the same crew. They left Syracuse about five o’clock in the afternoon, reaching Rock Cut about half past five ; and there, by the direction of the train dispatcher of the defendant at Syracuse, they took a side track, and waited for the passage of the north bound passenger train of the defendant. This came along a few minutes before six o’clock, and by reason ofthe negligent manipulation of the southerly switch at that point by one Clark, an employe of the defendant at that station, it was partially thrown upon the side track on which the plaintiff’s train was, and the engine on which he was then engaged was struck, and the plaintiff injured.

On the part of the defendant it is claimed (1) that the plaintiff and Clark were fellow servants, and the defendant therefore not liable; and (2) that Clark, in manipulating at that time the switch, was acting beyond the scope of his employment, and therefore, the defendant not liable. The trial court held, as matter of law, that plaintiff was not a fellow servant of Clark, or coemploye, and sub-. mitted to the jury in question whether Clark was then acting within the scope of his employment. The jury in effect found that he was.

1. The first proposition is based on the idea that, at the time of the accident, both were under the exclusive control of the defendant. In the contract it was provided that the conductors of coal trains should be under the control and subject to the orders of the superintendent of defendant. The coal trains were to be, and were, run on the time tables of the defendant. Still, under the contract, the business of each was entirely separate. The defendant did not run the coal trains or transport the coal. The men on those trains were not in defendent’s employ or in its business. It appears that the same person was general manager of both roads, and one person was superintendent of both on a division extending from Oswego to Binghamton. Still this did not consolidate the corporations or make the business of each the same. The superintendent testified that he sometimes discharged delinquent employes on coal trains, and put others in their places, but that this was only done when the men had violated the rules of the road, and the occasion had arisen while the train was on his division. This, as the witness said, was “for the protection of the public and the protection of our own property and the protection of everybody on the road.” The general manager told him, “Make the men on the Delaware and Lackawanna obeyed the rules, or discharge them.”

In Sullivan v. Tioga Railroad Co., 44 Hun, 304, the plaintiff’s intestate was an employe of the Erie Railroad, and at work in its yard at Elmira. He was injured by reason of the negligence of the employes of the Tioga Railroad Company in charge of a locomotive of that company in the yard. It was held by this court that the plaintiff’s intestate and the defendant’s employes on the locomotive were not co-servants, although the Erie road owned and controlled the yard, and, when the defendant’s locomotives were in it, the servants employed on them were under the exclusive control of the officers of the Erie road, who directed how locomotives should be run, at what speed, what precautions should Le used, and what signals given. This case was affirmed in the court of appeals, 112 N. Y. 643 ; 21 St. Rep. 827; and it was said that the defendant and its employes used the yard of the Erie road under such regulations as were imposed as conditions of use, not of service, and so the intestate was in respect to his employment a stranger to the defendant. The case of Smith v. N. Y. & H. Railroad Co., 19 N. Y. 127, is inferentially in the same direction. The case of Zeigler v. Railroad Co., 52 Conn. 543, is very much in point. There the Danbury & Norwalk and the Shepaug Bail-roads formed a continuous line. By an arrangement between the two companies, a train owned and run by the Shepaug- company went over both roads to a certain point and back daily, the Dan-bury & Norwalk Company paying the Shepaug company monthly an agreed price for the service upon its road. The train, when on the road of the Danbury & Norwalk Company, was under its general control, and governed by its rules, and it had entire control of the hands upon it, including the right to discharge any of them for neglect or any improper conduct while on the road ; but the Shepaug company was at liberty to use what engine and employ what hands it pleased. The plaintiff was a brakeman on this train, and was injured by a collision with a .train of the Danbury & Nor-walk Company on its own road, caused by the negligence of the conductor of that train. It was held that the plaintiff was not an employe of the Danbury & Norwalk Company, and that the conductor of the other train was therefore not his fellow servant.

Numerous cases are cited by the learned counsel for the appellant, but they do not, we think, reach the present question. The power of defendant’s superintendent in certain cases to discharge men on the coal trains is specially dwelt upon, but that is to be construed with reference to the object to be attained under the contract. The coal trains were not the defendant’s trains, nor were the men in its employ. -We think that upon this subject the trial court did not error.

2. The accident at Rock Cut was occasioned by the act of Clark in moving the switch so that the passenger train was thrown on the side track. Clark was a young man, about seventeen years old, and had been at that place about a week. He was the only employe of the defendant stationed at that place. It was a telegraph station, and Clark was the operator. The main line of the defendant has but one track, and at Rock Cut there is a side track on each side. The switch there that was operated on the occasion in question was what is called the “Wharton Safety Switch.” There is a heavy ball on the lever, which must be raised and held up in order to allow a train to pass onto the side track. When the ball was down on the ground, the main track was unbroken. -The switch could be locked down by means of a padlock. Clark seems to have received his instructions as to his duties from his predecessor at that place. He was told that it was his duty toflagthe highway crossing, and keep a train sheet, and telegraph to the main office the passage of trains; that in the morning a southbound passenger train and a, north-bound coal train met at that place, and it was bis duty to then operate the switch so that the coal train would enter on the side track, and allow the passenger ' train to go by ; and he understood that, when other trains met at that place, he did not have to turn the switch, but the men on the trains would do it themselves. A key to the switch was given him, and he understood it was his duty to lock it nights, and that it might remain unlock during the day. The hours of Clark at the station were from seven in the morning to six in the afternoon. Ten or eleven regular train’s passed each day during his working hours. There was a pair of scales there that he operated. The place was a flag station, where passenger got on and off. There was a "small building or shanty there, where the mail ,had been formerly received, but was not then, and one of ihe rooms was used as a telegraph office. Hpon the evening in question, the switch was unlocked. The ball was down, and, had Clark not touched it, the train would have passed safely. Clark, when he saw the train from the south approaching, was in the office. He came out, picked up his lantern, and signaled the train that the crossing was all right, and then, as he testifies:

“I swung my lantern, and then I had an idea that the switch ■ was wrong. These two trains leave here in the morning,—the one from the north and the one from the south,—and the train from the north comes down the main track. It is my business-when I go down in the morning to let this train from the south in on the side track, and it was in such a flash that I got mixed up on the rhorning and evening. I thought I ought to let the express in on the side track. I let it in. I went up to the switch and raised the lever. The engine and about two cars and a half got in on the side track, and I realized my mistake, and dropped the lever. I tried to right the mistake. I threw the rear end of the Pullman onto the main track. The rest of the train was on the main track, and the part that was smashed was on the side-one.”

He also says:

“ I had an idea that the train ought to go in on the siding, the same as the morning. * * * I ran as fast as I could from the-crossing to the switch. I had a cattle guard and culvert to pass. I started with the impression that I had got to turn the switch,, and didn’t change that impression until I dropped the ball. I gave no other signal for the train to stop.”

The test of a master’s responsibility for the act of his servant is not whether it was done in accordance with the instructions of the master to the servant, but whether the act was done in the prosecution of the master’s business. Cosgrove v. Ogden, 49 N. Y. 255.

In Molt v. Consumers' Ice Co., 73 N. Y. 543, the following-propositions are laid down :

“ For the acts of a servant, within the general scope of his employment, while engaged in his master’s business, and done with a view to the furtherance of that business and the master’s interests, the latter is responsible, whether the act be done negligently, wantonly, or even willfully ; the quality of the act does not excuse. But if the servant, without regard to his service, or to accomplish some purpose of his own, acts maliciously or wantonly, the master is not liable. Where, therefore, an action is brought against the master for the wrongful act of the servant, the inquiry is simply whether the wrongful act was in the course of the employment or outside of it.”

The master may be liable, though the servant is reckless and foolhardy. Ochsenbein v. Shapley, 85 N. Y. 222. So he may be for acts of injury and insult if they occur in the course of the employment. Palmeri v. Man. Railway Co. 133 N. Y. 261; 44 St. Rep. 894. Ordinarily the question is one for a jury to decide. Mott v. Consumers' Ice Co., 73 N. Y. 550, and cases cited.

Under the circumstances of the present case, we are of the opinion that the question whether Clark was at the time of the accident acting within the scope or course of his employment was properly left to the jury. Olark was placed by the defendant in. control of the switch,-as he was given a key to it. For some purposes he was authorized to manipulate it, and if he exceeded his instructions, to the injury of a third party, the defendant who furnished him the means and opportunity to cause the injury, should bear the loss, rather than an innocent party. Clark, according to his own evidence, thought he was furthering the interest of his employers. He supposed he was in the line of his duty. The court charged', at the request -of defendant, that, if Clark was acting maliciously, or under the influence of temporary mental aberration, the plaintiff cannot recover.

. The defendant claims that the decision of this court in Burke v. This Defendant, 69 Hun, 21; 52 St. Bep. 813-, is in the way of plaintiff’s recovery. That case related to the same disaster, and was an action brought by the administratrix of the engineer of the passenger train. The engineer was in the employ of defendant, and so a coemploye with Clark. The questions considered were whether, in several different aspects, there was negligence on the part of the corporation itself. The question whether .the defendant was liable for the negligence of Clark was not considered, and the ruling there does not therefore affect this case.

It is further claimed by the defendant that the verdict is excessive. By the collision the plaintiff was rendered unconscious, and so remained for several days. ‘ He was taken to a hospital, and there remained till the 20th December, following, and then was taken to his home, at Great Bend. He received several cuts and bruises on his right leg, and his back was bruised. It was, as he testifies, five or six months before his wounds healed over. He has been in pain.ever since, could hot walk for a year without crutches, and after that walked with a cane. He commenced to work some in February, 1892, and prior to the trial, in October, 1893, had worked about eight months. He was not able to work full time; did not average fifteen days a month. He .says:

“ When I was injured I got $1.90 a day as wages, and had been for about nine years. I am not very able to work now, because I am injured. I am crippled, and my constitution can’t stand the work. To stand on my leg affects it so I can’t stand on it, and stand steady on it. I can’t bend it. My back pains me steady all the while ; has since I got hurt. I have never been free from pain there since I got hurt. It seems as though it is a kind of boring right through there; steady pain on me all the while. It beats in the small of my back. * * * Since I got hurt, I never had an appetite, and don’t care if I never have anything to eat; always had a good appetite before. I have to get up in the night, and can’t sleep, several times, because of pain. * * * I am affected with pains so I can’t sleep. Have to get out of bed and walk the floor. for to get rest; have to several times. Aside from pain, I can’t sleep with pain. As to the feeling of my limbs and sensation of my back, it feels as though there was pain there all the while; feels numb. Heat and cold does not make much change on my back, because I always keep it pretty warm. My leg is cold. No matter how warm the weather is, the leg is ■always cold. That is so ever since I got hurt. * * * The changes in the atmosphere affect me in a way that, when the •change of the weather is, I have more pain than I have at other times. Consequently, can’t sleep or can’t rest or can’t work, in fact when the weather is changeable. * * * The injuries that were of a serious character where the injuries to my leg and back. When I first became conscious, I don’t remember the condition of the leg, because they had it all tied up. I did not see it at that time. When I saw the leg, it was all raw, like a piece of beef steak. It was all cut to pieces, and torn to pieces; burned up. I don’t think it was smooth all the way down. There were •cuts or=holes in it, located from below the knee up to the small ■of the back, upon the right side of the body, all the way up ; running from below the knee up to the calf of the leg. The injuries upon my back were not on the right side. They were in the middle of the back. It was a bruise in the small of the back. * * * Before I received these injuries, physically I was strong and healthy ; never was sick to my knowledge. I could work all right, right along, all the time doing a day’s work. I had no trouble with my limbs, no bruises of any other kind, before this accident.”

There was medical evidence to the effect that the right leg was smaller than the left one, and was much cooler; that it was weaker than the other, and would become more so, and the power of the muscle to contract would largely disappear; that he could not fully use the limb on account of pain, and it would remain so; that he could not straighten the leg without pain, and this difficulty was likely to remain; that there was a tenderness at the place of the injury in the back that was liable to be permanent or worse; that, when the spine is affected, it is a serious matter, and a complete restoration of the function of the member is impossible. There was other evidence which if relied on, would indicate that the injuries were less grave, but the subject was for the jury to pass upon. In one view of the case, the jury might say that not only were the injuries and the pain and suffering therefrom very serious, but that also the effect was likely to be permanent, so that the plaintiff’s ability for labor would be very materially affected, if not substantially destroyed. We are of the opinion that sufficient grounds for us to interfere do not appear.

The foregoing considerations lead to an affirmance of the judgment.

Judgment and order affirmed, with costs.

All concur.  