
    BERNARD SVENSON, Plaintiff and Respondent, v. THE ATLANTIC MAIL STEAMSHIP COMPANY, Defendant and Appellant.
    The defendant employed a lighter to take the cargo of one of its steamships; the crew of the lighter receiving the same alongside of the steamship from the persons employed on board the steamship by the defendant, and through the negligence of the latter persons the plaintiff was injured. Plaintiff was employed by the owner and master of the lighter.
    
      Held, that the rule that the common master of several servants, employed in the same service is not responsible for an injury to one of said servants caused by the negligence of another of such servants while engaged in a common employment, has no application to this case, as the proofs establish that the persons on the steamship discharging cargo and those on the lighter receiving the same were employed in different and separate service.
    The defendants admitted that they were the owners of the steamship, and had charge and control of, and managed the same at the time the injury was done, and that plaintiff was on board the lighter in unloading the steamship, but denied that the plaintiff was injured by the negligence of defendants or servants. The only evidence coupled with this admission that connected defendant with the injury, was the fact, that persons on board the steamship were engaged in dropping the bales from her deck upon the deck of the lighter, where plaintiff was engaged, and was injured by the bales that were carelessly handled and dropped from the steamship. There was no proof as to who those persons were who were thus engaged on board of the steamship, nor as to their relations to the steamship or the defendant.
    The facts of this case, tending to r'aise a presumption of law against defendant, cannot be distinguished from Norris ». Kohler (41 H. Y. 43).
    The defendants’ admission of ownership and management, was enough to charge them for the negligent acts of all persons on board, upon the authority of Norris «. Kohler (cited above).
    
      Before Barbour, Ch. J., Monell, and Jones, JJ.
    
      (Decided April 29, 1871).
    Appeal from a judgment and order.
    The action was for personal injuries sustained by the plaintiff, caused by the alleged negligence of the defendants’ servants.
    The complaint alleged that the defendants were the owners of the steamship “ Columbia.” That the plaintiff was on board the lighter “Florence,” engaged in unloading the steamship, when through the negligence of the defendants’ servants, a bale of tobacco was dropped upon the neck and shoulders of the plaintiff, and another fell upon and broke his leg.
    The defendants admitted they were the owners of the steamship, and had full charge and control of, and managed the same. They also admitted that the plaintiff was on board the lighter, engaged in unloading the steamship, but denied that the plaintiff was injured through the negligence of • the defendants’ servants. They further alleged that at the time of unloading the steamship, the plaintiff was in the defendants’ employment as their servant. They also alleged negligence on the part of the plaintiff.
    The action was tried before Mr. Justice Feeedman and a jury.
    A. motion was made at the beginning of the trial to dismiss the complaint, on the ground, that the plaintiff and the person causing the injury were fellow servants, engaged in a common employment. The motion was denied, and the defendants excepted.
    The motion was renewed at the close of the evidence, on the grounds ; first, of negligence on the part of the plaintiff; and second, of no proof that the accident was caused by the defendants. The motion was again denied, and the defendants excepted.
    
      The court submitted both these questions to the jury, and refused to charge that there was no evidence to connect the defendants with the injury. It also refused to charge that the plaintiff, knowing the manner in which the bales of tobacco were raised from the hold of the steamer, landed on the staging, and then rolled upon the deck of the lighter, was guilty of negligence in not avoiding the injury complained of, and therefore could not recover.
    Also, that it appeared from the proof, that the plaintiff and the person causing the injury were fellow servants, and therefore the plaintiff could not recover.
    The defendants excepted to the refusals.
    The court did charge, that the jury must be satisfied that the plaintiff in no way contributed to the injury ; and that it was caused solely by the negligence of the defendants’ servants, while engaged in unloading the steamship.
    The plaintiff had a verdict. The defendants moved for a new trial on the judge’s minutes, which motion was denied, and judgment entered upon the verdict.
    The defendants appealed from the order and judgment.
    
      Thomas M. Wheeler, for appellant.
    The judge erred in not granting the motion to dismiss the complaint on the ground that the plaintiff and the person causing the injury were fellow servants, engaged in a common employment, and therefore the plaintiff could not recover (Folio 2).
    The allegation in the complaint is “That on the said 27th day of September, 1869, the plaintiff was on board the lighter named the Florence, engaged in unloading said steamship Columbia, in the harbor of New York, and that at such time and place, through negligence of defendant’s servants, a bale of tobacco was dropped upon the neck and shoulders of plaintiff, and. - another bale upon his leg.” Folios 74 and 75. That is, the plaintiff and defendant were engaged in the common employment of unloading the steamship Columbia.
    
    “ The general rule that an employer is not responsible for injury occasioned by another employee engaged in the same general undertaking, is firmly settled in this State.” Boldt v. N. Y. Central R. R. Co., 18 N. Y. 433.
    “ The general rule that when several persons are employed in the same general services, and one is injured by the carelessness of another, the enployer is not responsible, is now to well settled to be disputed.” Russell v. Hudson River R. R. Co., 17 N. Y. 136.
    It is not necessary that both should be paid by the same employer, to make them fellow servants.
    “ Servants who are employed and paid by one person may, nevertheless, be ad hoc the servant of another in a particular transaction ; and that too when their general employer is interested in the work.” Shear. & R. Neg. 89.
    “When the person employed is in the exercise of a distinct and independent employment, and not under the control and supervision of the employer, the re-' lation of master and servant does not exist” (Linton v. Smith, 8 Gray (Mass.) 148.)
    “ It is objected that Ladd being employed by the plaintiff to work on the road, under the direction of the defendant, was the servant of the plaintiff, and that the defendant is not responsible for his acts. But we think it very clear, that while Ladd was át work on the highway, under the control of the defendant, he must be considered as the servant of the defendant, and that it is immaterial whether he was employed by the plaintiff to work out his highway tax, or by any other person” (Elder v. Bemis, 2 Metc. (Mass.) 604. See Blake v. Ferris, 5 N. Y. 58 ; Murphy v. Caralli, 3 Hurl. & C. 462).
    The plaintiff and defendant were therefore fellow-servants, employed in the same general undertaking. If the lighter had engaged to unload the stamship, then the person causing the injury was in the employment of the owner of the lighter ; if the defendant had employed the lighter, then the plaintiff was an employee of the defendant; in either case the plaintiff and the person causing the injury were under the control of the same master, and plaintiff cannot, therefore, recover.
    The judge erred in not granting the motion for a nonsuit, on the grounds:
    
      First. That the evidence proved that the. plaintiff had been guilty of negligence, which contributed to the accident.
    
      Second. That the defendant had not in any way been connected with it. There was no proof that the accident was caused by the defendant, or that the person doing the injury was a servant of the defendant or in its employment.
    There was no dispute that the lighter and the men on her were engaged in unloading the steamship.
    The definition of unload is “to take, remove, or put out of a vessel.” (Worcester Die). .
    
    Therefore the lightermen were to remove and take out the tobacco from the hold of the vessel, and there being no evidence to the contrary, it must be assumed that the men employed in removing the goods from the hold of the steamer, which would include the man on the platform, were the servants of or in the employ of the lightermen.
    Look at the testimony of James Mauson :
    Q. You were captain of the barge Florence ?
    A. Yes, sir.
    Q. On the 27th September, 1869 ?
    
      A. Yes, sir.
    Q. Engaged in unloading the steamship Columbia, down at quarantine, of tobacco.
    A. Yes, sir (Folio 31).
    Q. Who employed these men ?
    
    A. I hired them. Picked out my own men when I wanted them.
    Q. And paid them ?
    A. Yes, sir (Folio 32).
    Throughout the testimony the person said to have caused the injury is referred to only as the man on the platform. Had such been the allegation in the complaint, a demurrer to it, as not stating facts sufficient to constitute a cause of action, would have been sustained.
    In Blackwell v. Wisewell, 24 Barb. 356, the allegation was that one Maher was drowned through the negligence of “ the man” rowing and having charge of the skiff. The complaint was demurred to as not stating facts sufficient to constitute a cause of action. The demurrer was sustained. The court said, “ The allegation in the complaint is that Maher was drowned through the negligence of ‘ the man’ rowing and having charge of the boat. Whose man he was does not appear B
    
    In this case, then, it not appearing whose man the man on the platform was, the verdict cannot be sus-, tained. The plaintiff must show that the relation of master and servant existed between the “man on the platform ” and the defendant.
    “The defendants, therefore, without evidence of such relation ”—that of master and servant—“ subsisting between them and the porter”—the person causing the injury—“could not upon any principle, be rendered liable for the consequences of his negligent acts while so engaged” (Stevens v. Armstrong, 6 N. Y. 442).
    The true test is to ascertain the relation between the party charged and the party actually doing the injury. Unless the relation of master and servant exists between them, the act of one creates no liability in the other (Blake v. Ferris, 5 N. Y. 55).
    
    But it is said that the answer admits that the defendant owns, controls and manages the steamship, which was being unloaded, and that this is an admission that the man on the platform was in the employ of the defendant.
    It is contended that there is no such admission, nor is there any presumption of law that the man on the platform was in the employ of the defendant. But if it is so, then the defendant had control and management of the unloading of the steamship, and the plaintiff, being engaged in the unloading, was a servant of the defendant. If there is a presumption that the man on the platform was a servant of the defendant, there is also a presumption that the plaintiff was a servant also of the defendant, and therefore he cannot recover. But there is no such presumption in law.
    In the case of Blackwell v. Wiswell, 24 Barb., 356 —before cited—the court says, “ It is alleged that the skiff was run at the defendant’s ferry, and pursuant to the defendant’s license. But this allegation is not sufficient to warrant the inference that the man rowing and having charge of the skiff was in the defendant’s employ.”
    The case of Norris v. Kohler, 41 N. Y. 42, does not apply to this case. In that case the injury was caused by a horse and wagon. The court said, “ The property being proved to belong to the defendant, it is urged that a presumption arises that it was in his use, for his benefit, and on his own account;” and it was therefore held that the driver was a servant of the defendant. It may be that a horse and wagon could not be in possession of the driver without the consent of the owner. But that doctrine would not apply to a stea mship, where a large number of men are employed; but if the same presumption arises in the case of a steamship as in the case of a horse and wagon, then all persons using the steamship are servants of the owner of the steamship ; and in this case the lightermen would be servants of the defendant.
    Again, the man on the platform was under the direction and control of the captain of the lighter. See Captain Hanson’s testimony, fol. 35.
    When a man is employed in doing a job or piece of work with his own means and his own men, and employs others to help him or to execute the work for him, and under bis control, he is the superior who is responsible for their conduct, no matter for whom he is doing the work (Blake v. Ferris, 5 N. Y. 58.)
    But even had the man on the platform been one of the crew of the steamship and been paid by the defendant—on which point there is no testimony, and which might easily have been proved by the plaintiff, had such been the fact—still, being engaged in the business of unloading the steamship, he was in the employment of the lighterman, and the defendant is not responsible for his acts (See Shear. & R. on Neg. 89 ; Linton & Smith, 8 Gray (Mass.) 148 ; Elder v. Bemis, 2 Metc. (Mass.) 604 ; Blake v. Ferris, 5 N. Y. 58).
    In Murphy v. Carilli, 3 Hurl. & C. 462, the defendant’s servants piled in an improper manner some bales of cotton under the direction of the warehouseman, who had exclusive control over the mode in which they should te piled. The bales fell and injured the plaintiff. Held, that the defendant was not liable, as his servants, in doing the act, were the servants of the warehouseman.
    
      The immediate employer of the agent or servant through whose negligence an injury occurs, is the person responsible for the negligence of such servant. To him the principle respondeat superior applies.
    
      There cannot be two superiors severally responsible in such case (Blake v. Ferris, 5 N. Y. 49).
    To the first ground for a motion for a nonsuit, it appears from the evidence that plaintiff’s negligence contributed to the injury.
    It appears from the testimony that four bales at a time, being hoisted from the hold of the steamship by steam-power, were landed on the platform, the bales taken from the sling, rolled to the end of the platform, a distance of twenty feet, and then thrown on the deck of the lighter. That from five to ten minutes would elapse after one lot of four bales were brought up before another lot would be brought up. That it would take, one or two minutes to pile the bales on the lighter after they were thrown on the deck. The plaintiff had been working on the lighter all day, knew how they were thrown on to the lighter, and had sufficient time to get out of the way, and had he exercised ordinary care and diligence could have avoided the injury.
    ' It appears, moreover, that the lighter was nearly loaded, leaving a space of eight or nine feet; on the rest of the deck the bales being piled up seven or eight bales high. This state of facts called upon plaintiff for a great degree of prudence and carefulness in avoiding the bales which were thrown down. He should not have relied entirely upon the man' on the platform singing out. He should have used his eyes and ears. Had he used his eyes he could have seen the bale hoisted from the steamer’s hold, and had he used his ears he could have heard the noise of the engine and of the ropes and tackle used in hoisting the bales, and thus have avoided the injury.
    His own negligence lias clearly contributed to the injury, for the plaintiff was in such a position that he should have exercised more than ordinary care in avoiding injury, and he must show affirmatively that he exercised such.
    “The measure of precaution which ordinary prudence suggests, is in due proportion to the probability of danger” (Ernst v. Hudson R. R., 35 N. Y. 27).
    The case in 1 Allen, 187, 190, lays down as the undoubted law (of Mass.), that the plaintiff must show by affirmative proof that he was in the “exercise of due care,” and for failure of such proof the court should as it did nonsuit (Wilds v. Hudson River R. R. Co., 24 N. Y 434).
    Crossing a railroad where five different tracks ran parallel, after looking one way only—held, in the case of a man of full age, conclusive evidence of negligence (Bieseigel v. N. Y. Cent. R. R., 33 Barb. 429. See same case, in 40 N. Y. 9).
    The counsel also cited and reviewed the following cases in support of the point, that plaintiff’s negligence contributed to the injury, and the motion for a nonsuit was improperly overruled: Wilcox v. Rome, Watertown & Og. R. R. Co., N. Y., 361, 365 ; approved in Havens v. Erie R. R. Co., 41 Id. 299 ; to same effect, Nicholson v. Erie R. R. Co., Id. 525 ; Baxter v. Troy & Boston R. R. Co., Id. 503, 505; Wilds v. Hudson River R. R., 23 How. Pr. 493 ; 24 N. Y. 432 ; Shear. Neg. 39).
    The judge erred in refusing to charge the jury that the plaintiff, knowing the manner in which the bales were raised from the hold of the steamer, landed on the staging, and then rolled upon the deck of the lighter, was guilty of negligence in not avoiding the injury complained of, and therefore could not recover.
    The judge erred in refusing to charge that it appeared from the proof, that the plaintiff and the person causing the injury were fellow servants, and therefore could not recover. Folio 65.
    Servants are engaged in a common employment when each of them is occupied in service of such a kind, that all the others, in the exercise of ordinary sagacity, ought to be able to foresee, when accepting their employment, that it may probably expose them to a risk in case he is negligent (Shear. Neg. 133).
    The case should have been decided by the judge, and not left to the jury.
    When the direct fact in issue is established by undisputed evidence, and such fact is decisive of the cause, a question of law is raised, and the court should decide it. The jury have no duty to perform (Shear Neg. 11, note 3 ; Dascom v. Buffalo & State Line R. R., 27 Barb. 228 ; Beiseigel v. N. Y. Cent. R. R., 33 Id. 432).
    Another preliminary point to be passed on is the claim that the question of negligence belongs peculiarly to the jury, and that cases involving that question should never be taken from them, to be decided by the court. To this position it should be answered that there is no case known to the law in which an appellate court has not and does not, on proper occasions, exercise the power of setting aside the verdict of a jury, not merely when it is against evidence, but when it is clearly against the weight of evidence. And no court can be guilty of the absurdity of holding that, in such a case, it would not have been competent for the judge who tried the cause, either to nonsuit the plaintiff or direct a verdict in his favor, as -the case might have required. No legal principle compels him to allow a jury to render a merely idle verdict (Wilds v. Hudson River R. R. Co., 24 N. Y. 433).
    Hilton, Campbell & Bell, for respondent.
    The principle that a master is not liable to one servant for the torts of another in the same employment, does not apply to this case, the servants being employed by different masters, the plaintiff being in the employment of the owners of the lighter, the person throwing the bale of tobacco, in the employment of the defendants.
    This question is fully discussed and settled in Young v. N. Y. Cent. R. R. Co., 30 Barb. 229.
    In that case, the plaintiff, being employed by a contractor to repair a railroad bridge, was injured by a passing train; held that he could recover from the railroad, as there was no privity between him and the defendants, he not having been employed by the defendants. In Smith v. N. Y. & Harlem R. R. Co., 19 N. Y. 132, the court says :
    “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” (See. also Story on Agency, ed. of 1863, 6th ed., §§ 453-9 ; also English case of Abrahams v. Reynolds, 5 Hurl. & N. 143—a case exactly like this).
    Abrahams, the plaintiff, was a servant of J. & Co., who were employed by Reynolds, the defendant, to carry cotton from a warehouse ; one of Reynolds’ porters, in lowering the bales of cotton from the upper floor of the warehouse, negligently let one fall upon the plaintiff; held, that he could recover from Reynolds, there being no privity between him and Reynolds, he being employed by J. & Go.
    
    This case was decided unanimously by the full bench of the Exchequer.
    There was no contributive negligence on the part of the plaintiff.
    He was engaged in doing his duty, saving a bale of cotton about to fall overboard. The custom was to give notice before throwing down new bales ; the man on the steamship could see the plaintiff on the deck of the lighter; no notice was given;. the plaintiff was justified in supposing that he was seen, and that no bales would be thrown down, until he could get out of the way.
    
      The question was properly left to the jury, and their decision is conclusive (Ernst Hud. R. R. R. Co., 35 N. Y. 9 ; Beisiegel v. N. Y. C. R. R. Co., 34 Id. 622).
    The defendant was sufficiently connected with the tort.
    The answer admits that the defendant owned, had charge and control of, and managed the steamship being unloaded. The evidence shows that while unloading that vessel, a man upon her platform threw down the bale of tobacco that injured the plaintiff.
    The presumption is, that he was in the employment of the defendant (Norris v. Kohler, 41 N. Y. 42 ; Holbrook v. U. & S. R. R., 12 Id. 242; Johnson v. H. R. R. R. Co., 20 Id. 65 ; Althorf v. Wolf, 22 Id. 355).
    The testimony of James Mauson, the captain of the lighter, shows with sufficient clearness that the man who threw down the bale was not in his employment, but was a servant of the defendant.
    At folio 33, he states the custom of unloading vessels, using the word “they ” in regard to the men employed by the steamships, and the word “we” in regard to his lightermen.
    And the same appears in all the testimony of the other witnesses.
    The plaintiff swore that there were four men on the lighter (fol. 9), all of whom appeared as witnesses for him, so none of them could have thrown the bale.
    The evidence certainly is sufficient to raise a presumption that the man who threw the bale upon the plaintiff was in the employment of the defendant, within the rule as laid down in Norris v. Kohler, 41 N. Y. 42 ; Althorf v. Wolf, 22 Id. 355.
    -If the fact had- been otherwise, the defendant could easily have proved it.
   By the Court.—Monell, J.

The rule, that the common master of several servants, employed in the same service, is not responsible for any injury to one of such servants, caused by the negligence of another of such servants, while engaged in a common employment, can have no application under the proof in this case.

The evidence was not very clear, but enough, I think, to show that the persons engaged on board the steamship in hoisting the tobacco and discharging it upon the lighter, were employed in a different and separate service from that in which the plaintiff was engaged, and by a different and separate master. That such persons were the servants of the defendants, was not established by any direct proof, other than the admission of the defendants, that they were the owners of the steamship, and had charge and control of, and managed her, at the time of the injury.

The lighter belonged to other owners, and was engaged to lighten the cargo of the steamship. She was in charge of Captain Mauson, who employed the plaintiff, as one of his workmen, to assist in receiving the steamship’s cargo. The lighter was placed alongside the steamship; the cargo was taken out of the steamship by persons other than the lighter’s crew, and was received by such crew on board of the lighter. The persons on board the steamship were not employed by the captain or owners of the lighter, nor were they, in any sense, subject to their direction, nor under their control; nor was the plaintiff in any sense under the direction or control of the defendants.

No evidence was given on the part of the defendants, and the plaintiff and Captain Mauson each testified, that the plaintiff was employed by the owners of the lighter, through the captain.

The service performed on the steamship and lighter, respectively, was distinct and separate. The crew of the former hoisted the tobacco from the hold upon deck, and then placed it upon the platform over the lighter, and then let it drop upon the deck of the lighter. The crew of the lighter received the bales as they came down from the steamship, and stowed them upon the deck of the lighter.

The rule contended for by the defendants’ counsel, cannot, therefore, have any application here. The plaintiff was not the defendants’ servant, and if the person or persons by whose negligence he was injured, were the servants of the defendants, they are liable.

The cases to which we were referred, were all cases of a common employer, and the principle they establish is familiar; but I think I have shown that it cannot be applied to this case.

A question of perhaps more difficulty is presented by the motion to nonsuit on the ground that the evidence did not connect the defendants with the injury.

The only evidence, coupled with the admission already referred to, was that persons on board the steamship were engaged in dropping the bales of tobacco from her deck upon the deck of the lighter. There was no proof, either way, who the persons were, nor what relation they sustained to the steamship or to the defendants. And, therefore, except for the aid which a presumption of law furnishes, the case would be destitute of evidence even tending to fasten a liability upon the defendants.

But the facts of this case, as tending to raise a presumption of law against the defendants, cannot, I think, be distinguished from Norris v. Kohler, 41 N. Y. 42.

In that case there was only some slight evidence that the runaway team was “owned,” by the defendant, and there was no proof that the persons in charge of the team were in the employment of the de-' fendant, or sustained any relation whatever to him.

Upon the mere proof of “ ownership of the team,” the court held that a presumption arose, “that it was in use for his benefit, and on his account.” Thus applying the principle, that, the ownership of property draws to it the possession, or rather the right to the possession, to a case charging the owner with the tortious act of a person, other than the owner, while in the possession of and using such property.

The defendants admitted themselves to be the owners of the steamship, and upon the authority of Norris v. Kohler, that was enough to charge them for the negligent acts of all persons on board.

Upon the question of the defendants’ negligence, there was enough to sustain the verdict.

The evidence was, that on any other occasion the persons on the steamship, before dropping a bale upon the lighter, cried out “stand from under,” or “look out.” Such warning was omitted when the plaintiff received his injury. The plaintiff could not see the impending peril, and had á right to wait for the accustomed signal, before escaping to a place of safety.

There was, therefore, no negligence on his part.

■ I think the judgment and order should be affirmed, with costs.  