
    Sarah S. Smith, Administratrix, &c., v. The New York and Harlem Railroad Company.
    A switch-tender, employed by a railroad company on a portion of its track upon which it permits another company to run trains, is not a servant of the latter; and an engineer of the latter, injured by the negligence of such switch-tender, may maintain an action against the switch-tender's employer.
    A railroad company is liable in damages for an injury resulting to any person lawfully using its road from its neglect to introduce any improvement in its apparatus which it knows to have been tested and found materially to contribute to safety, and the adoption of which is within its power so as to be reasonably practicable.
    Appeal from the Superior Court of the city of New York. Action upon the statute (ch. 450 of 1847), for damages from the death of the plaintiff’s husband, by the wrongful negligence of the defendant. The deceased was an engineer in the service of the New York and New Haven Railroad, which runs its trains between Williams Bridge and the city of New York, over the track of the defendant. It was admitted by the pleadings that the defendant’s track was thus used under some arrangement between the two companies under which the defendant received a compensation for such use, and was bound to keep the road in good order, supplied with proper switches, watched and adjusted by the defendant’s servants as well for the trains of the New Haven company as its own. The complaint averred that the defendant permitted a switch of an insufficient, improper and unsafe character to be used at Mel-rose, upon the portion of the track used by the two companies; and, also, that by the negligence and unskillfulness of the defendant’s switchman at that point, the switch and signal were improperly turned and placed, in consequence of which an engine and train of the New Haven Company, under the conduct of the deceased as engineer, was thrown from the track, and he was killed.
    Upon the trial, before Mr. Justice Woodruff, there was evidence that at the place where the accident occurred there was a “short switch,” and that a different construction, known as the frog and guard rail, is so greatly superior in point of safety to the short switch that the latter has generally been discarded on railroads, and the former adopted in its place. When the evidence on the part of the plaintiff was closed, the defendant moved for a nonsuit, on the ground that the accident was occasioned by the negligence of a fellow-servant engaged in the same business, and was one of the risks assumed by the deceased by virtue of his employment. The motion was denied, and the defendant excepted. The same question was raised by an exception to the charge. The judge charged the jury that if there was a want of reasonable skill and prudence on the part of the defendant, in the construction of its road at the place of the accident, or a neglect on its part to adopt a useful improvement in the construction of the switch, by which improvement the danger of accident would be materially reduced, which improvement was known to the defendant and in its power to apply, the defendant was liable, if such omission caused the accident, unless the deceased was also guilty of negligence concurring to cause the result. But this rule, he continued, does not require the defendant to adopt or apply every new invention, nor any invention the utility of which is in doubt; on the contrary, to do that might itself be culpable. The obligation to use a new invention only arisés when such improvement has been proved and found to be valuable as a means of promoting safety, and that is known to the defendant, and the improvement is within its power so as to be reasonably practicable. To this portion of the charge the defendant took an exception.
    The jury, in answer to a specific question, found that the death of the intestate was caused by the negligence of the defendant’s switch-tender, without any negligence on the part of the deceased concurring to produce the result; and also answered in the affirmative the question: Did negligence on the part of the defendant, in not providing a proper switch, also cause the accident without negligence on the part of the deceased?
    The plaintiff had a verdict and judgment, which was affirmed on appeal, at general term, and the defendant appealed to this court. The cause was submitted on printed arguments.
    
      Charles W. Sandford, for the appellant.
    
      Ebenezer Seeley, for the respondent.
   Grover, J.

The defendant’s counsel insists that this case comes within the rule that a servant cannot recover for an injury caused by the negligence of a fellow-servant employed by the same master, in the same general business. The case of the plaintiff differs from the cases to which this rule has been applied in this important fact: the deceased and switch-tender were not employed by the same master. The former was the servant of the New York and New Haven Railroad, and the latter of the defendant The presumption from the facts of this case is, that the defendant, for a compensation therefor, gave the New York and New Haven Company the right of running trains over its track, and agreed to provide switchmen and flagmen to attend upon such trains. The switchmen and flagmen furnished by the defendant for this purpose, were in no sense the servants of the New York and New Haven Railroad Company. The defendant would be liable to that company for their negligence. This case does not, therefore, come within any of the adjudged cases establishing the above rule. I think it is not embraced by any of - the reasons upon which it 'is founded. One is to secure Vigilance" and care by each servant -in the discharge of his duty to bis employer. Whatever importance may be attached to this' is inapplicable to this case.- Another is to protect the employer from' the great hazards to" which he would otherwise be exposed: and' still' another, that the servant- may provide against risks of this character by his contract. This case 'does not fall within either; The deceased was as much a stranger to the defendant as any passenger in the train run by him, and I think,"entitled equally with them to protection against .the negligence of the defendant or its servants.

- 'Another question presented by the exceptions is,-whether the defendant- is liable to any one except the New York and, New Haven Railroad’Company, with which the contract was made. In the case of Thomas v. Winchester (2 Seld., 397), it was held by this court that a dealer in drugs, vending poison labeled as harmless medicine, was liable to a party who purchased from the innocent vendee, for an injury occasioned by its use.' The reasons assigned for the decision apply with equal ’ force to this case. Death, or great bodily harm, is. the natural and almost inevitable consequence of negligence in either case. Mischief, like that which actually happened, was to be expected from such negligence. In the case cited, Rugóles, J., refers‘with approbation to the distinction recognized in Longmeid v. Holliday (6 L. & Eq., 562), between an act of negligence imminently dangerous to life, and one not so; holding the party guilty liable in the former, to one not contracting with him, for an injury sustained thereby, but not in the latter. In the case last cited, Pabke, Baron, says: “If a stage-coach proprietor, who may have contracted with the master to carry his servant, is guilty of neglect, and the servant sustains serious personal damage, he is liable to him, for it is a misfeasance towards him, if after taking him as a passenger, the proprietor, or his servant, drives without due care, as it is a misfeasance towards every one traveling on the road. ' I think it a misfeasance in this case towards every one lawfully traveling over the defendant’s road to permit any portion of the track to be in a dangerous state. The safety of the public will be promoted by adopting such a rule. The consequences of negligence in all cases of this kind require the court to apply the rule adopted in Thomas v. Winchester. That rule holds the party liable for all injuries sustained by any one without fault, which were the probable consequences of his negligence, when such negligence was imminently dangerous to life. Such liability tends to promote caution in these transactions of such vast importance to the public. A contrary rule will induce carelessness and negligence. There was no error in that portion of the charge relating to the duty of the defendant to adopt new improvements, by which the danger of accidents would be materially diminished. (Hegeman v. The West. R. R. Co., 16 Barb., 353.)

The judgment should be affirmed.

Selden, J.

The accident out of which this case has arisen occurred to a train of ears belonging to the New York and New Haven Railroad Company, while running upon the defendants’ road, and was caused by the misplacement of the switch upon the latter road, through the negligence, as the jury have found, of the switch-tender employed by the defendants. The plaintiff’s husband, whose death was caused by the accident, was an engineer in the employment of the New York and New Haven Railroad Company; and the defence set up in the answer and insisted upon at the trial is, that the employees of the New York and Harlem Railroad Company, while engaged in passing the trains of the former company over that portion of the road of the latter which is used for that purpose, are to be regarded as the servants and agents of the New York and New Haven Railroad Company, and hence, according to the settled doctrine, that a principal is not responsible to one servant for an injury caused by the negligence of a fellow-servant, engaged in the same general business, the defendants are not liable.

But it is obvious that this doctrine has no application whatever to the case. The rule applies only where the action is brought for an injury to a servant or agent against the principal by whom such servant was himself employed. There is no pretence that the deceased was in the employment of the Mew York and Harlem Bailroad Company, against whom this action is brought. If the defendants are right, then both he and the switch-tender whose negligence caused the injury, were servants of the Mew York and Mew Haven Bailroad Company, and not of the defendants. Had the action been against that company, the question as to the applicability of the doctrine referred to might arise, but here it cannot. As between the deceased and the defendants, no such relation as that of master and servant existed. The question between them, therefore, is the same as if the deceased had been a passenger upon the train to which the accident occurred, and the defendants can only succeed by showing that the switch- . tender was not, at the time of the accident, their servant, in . such a sense as to render them responsible to any third person for Ms negligence.

The act of March 29th, 1848, authorizes the Mew York and Mew Haven Bailroad Company to run their cars upon a section of the defendants’ road, upon such terms as may be agreed upon between the two companies. The precise nature of the arrangement made pursuant to tMs statute does not appear. But it is shown that all the switchmen and flagmen who attended to the trains of the Mew York and Mew Haven Bailroad Company, upon that section of the defendants’ road, were employed by the defendants; from which it is to be inferred that the contract between the two compames was such that the Mew York and Mew Haven Bailroad Company had nothing to do with the selection and payment of this class of employees. Of course, therefore, as between that company and the defendants, the latter would be responsible for the character and conduct of such employees, who, under such circumstances, must be regarded, as to all intents and purposes, their servants and agents, and not those of the He.w Haven company, between whom and the employees no privity of contract whatever existed. If then there was nothing in the relations of these two companies to prevent the defendants from being liable directly to the Hew Haven company for the negligence of this class of agents, much less can they exempt themselves from responsibility to third persons.

The judge, therefore, was clearly right in charging the jury that if the injury was caused by the carelessness of the switch-tender, without negligence on the part of the deceased, the plaintiff was entitled to recover.

It is equally clear that he was right in that portion of the charge which related to the construction of the road. It was satisfactorily proved, that if what the witnesses call the frog and guard rail had been used at the place where the train ran off, instead of the short switch, the accident in all probability would not have happened. Hearly all the witnesses regarded the former as a valuable improvement upon the short switch, and as adding greatly to the safety and security of the trains. It had been adopted, according to the testimony, previously to the accident, upon nearly all the roads in the country, and had even been substituted, in many places, for the short switch upon the defendants’ own road.

It has been held that railroad companies are bound to avail themselves of all new inventions and improvements known to them, which will contribute materially to the safety of their passengers, whenever the utility of such improvement has been thoroughly tested and demonstrated. (Hegeman v. The Western Railroad Company, 3 Kern., 9.) Undoubtedly this rule is to be applied with a reasonable regard to the ability of the company,- and the nature and cost .of such improvements ; but within its appropriate limits it is a rule of great importance, and one which should be strictly enforced. A stronger case for the application of the rule than is here presented could scarcely arise. The improvement related to a part of the apparatus of the road which is the source of numerous accidents. Its utility was undoubted and the expense trifling. The defendants had themselves recognized its value. If the principle should ever be applied; therefore, it should be applied here. The defendants were clearly in default for permitting the short switch to remain in use upon the road, especially at a place where there was a somewhat unusual complication of switches. The judge was fully warranted, therefore, in submitting this question of negligence to the jury, even if he would not have been authorized to assume, as matter of law, that the company had neglected their duty in this respect. The language in which this part of the charge was couched was appropriate, and I discover no error in it.

The judgment should be affirmed.

All the judges concurring,

Judgment affirmed.  