
    Coon v. Syracuse and Utica Railroad Company.
    
      Master and Servant. — Negligence of fellow-servant. — Appeal.
    An employer is not liable to one of Ms servants, for injuries sustained in consequence of the negligence of another servant, whilst engaged in the same general business or employment, though in a distinct department.
    A point not made in the court below, cannot be urged, for the first time, in an appellate court, as ground of reversal.
    Coon v. Syracuse and Utica Bailroad Co., 6 Barb. 231, affirmed.
    * Appeal from the general term of the Supreme Court, in the fifth district, where a motion for a new trial had been denied, and 'a judgment of nonsuit affirmed. (Reported below, 6 Barb. 231.)
    This was an action upon the case, to recover damages for injuries sustained by the plaintiff, in consequence of being negligently run over by a train of cars on the defendant’s railroad. The defendant pleaded the general issue.
    It appeared on the trial, before Pbatt, J., that, at the time of the accident, the plaintiff was in the defendant’s employment, as a trackman, and had been so for five or six years; his duties were, to pass over the track, on a hand-car, upon a specified route, after the passenger trains, to examine the track, fasten down loose joints, report cases of broken rails, repair fences, and drive off cattle. On the night of the accident, there was, at Green’s corners, on the line of the defendant’s road, a passenger train going east, another passenger train going west, and what was called a stake-train, used for carrying materials to repair the track. The passenger train from the east went upon a turn-out, and that from the west passed the side track; the former train then backed on to the main track, and proceeded on west, the plaintiff following it upon a hand-car; and the latter train hacked into the side track and allowed the stake-train to pass it, going west. The stake-train carried no light, neither had the plaintiff any light with him upon the hand-car as was customary; the stake-train did not usually pass at that hour, and the plaintiff had no notice that it was expected. Whilst running at its usual speed, the stake-train collided with the hand-car, and so severely injured the plaintiff as to render him a cripple for life; for which injury this action was brought.
    Witnesses were examined, with a view of showing that the accident occurred in consequence of the mis-. management of the stake-train; *but at the close ° of the plaintiff’s testimony, the learned judge, on motion of the defendant’s counsel, granted a nonsuit, on the ground “that one servant could not sustain an action against his employer, for damages sustained in consequence of the negligence of another servant of the same employer, in the same general business.” The plaintiff’s counsel excepted to this ruling, and insisted that he had a right to go to the jury upon the facts proved. The court, at general term, denied a motion for a new trial, and judgment having been perfected against the plaintiff, he took this appeal.
    
      Jenlcins, for the appellant.
    
      Fairchild, for the respondent.
   Gardiner, J.

It has been decided, in England, and in Massachusetts and some other states of the Union, that, where different persons are employed by the same principal, in a common enterprise, no action can be sustained by them against their employer, on account of injuries sustained by one agent through the negligence of another. (Priestly v. Fowler, 3 Mees. & Welsb. 1; Farwell v. Boston & Worcester Railroad Co., 4 Metc. 49; Murray v. S. Carolina Railroad Co., 1 McMullan 385.)

In Brown v. Maxwell (6 Hill 594), the case from Massachusetts was cited and approved by the learned judge who delivered the opinion of the supreme court in that case. *The good sense of the principle, when applied to individuals engaged in the same service, is sufficiently obvious; there may be more doubt of its justice, in reference to those whose employments are distinct, although both may be necessary to the successful result of a common enterprise. The case before us cannot be distinguished from that in Metcalf. To the elaborate opinion of Chief Justice Shaw, nothing can be added, without danger of impairing the force of his reasoning. It is only necessary to express my concurrence, generally, in the views there suggested, which, if adopted, must be held as decisive in this case.

The ground taken upon the argument by the counsel for the plaintiff, that there was testimony tending to show that the stake-train, when the accident occurred, was running in accordance with the regulations of the defendants, and, therefore, the injury was the act of the corporation, and not of its agents, is not sustained by the evidence in the bill of ■ exceptions; and if it was, the point was not made distinctly upon the trial. The judge put his decision, in terms, upon the ground that the defendants were not responsible to the plaintiff, for the negligence of the conductor of the stake-train. If the plaintiff’s counsel wished to submit to the jury the question now raised, that the conductor was merely complying with the commands of his principals, and that negligence was not to be imputed to him, but to the defendants themselves, a request to that effect should, under the circumstances, have been made to the judge. As it was, he was left to suppose, that the cause was intended to be tried, upon the grounds, suggested by him in his decision. I think, that the judgment of the supreme court should be affirmed.

Foot, J.

The decision of this cause depends on a very important principle, one which has been unfolded and brought to view, within the last twenty years, and principally, by the new business commenced within that period, and now extensively *prosecuted, of transporting persons and property by steam on railways. It is this: that an employer is not liable to one of his agents or servants, for the negligence of anothér of his agents or servants, engaged in the samo general business. Was this principle sought to be applied, for the first time, in the present action, I should deem it my duty, not only to examine it in all its bearings, test its soundness by all the means at my command, and endeavor to reach a correct conclusion, but also to assign in full my reasons. This duty has, however, been already performed, ably and learnedly, by three eminent judicial tribunals, viz., the court of exchequer in England, the court of appeals of South Carolina, and the supreme court of Massachusetts. (Priestly v. Fowler, 3 Mees. & Welsh. 1; Murray v. S. Carolina Railroad Co., 1 McMullan 385; Farwell v. Boston & Worcester Railroad Co., 4 Met. 49.) They all concur in sanctioning the principle, and I fully acquiesce in their judgment. Mr. Justice Beardsley has also expressed his approbation of it, in the case of Brown v. Maxwell (6 Hill 594). The supreme court of Massachusetts has re-affirmed it, in the case of Hays v. Western Railroad Corporation (3 Cushing 270), and the English court of exchequer, in the case of Hutchinson v. York Railroad Co. (5 Exch. 343). It must now be considered as settled, and hereafter to form a part of the common law of the country.

Judgment affirmed. 
      
       See, to the same point, Tinney v. Boston and Albany Bailroad Co. 52 N. Y. 632; Ross v. New York Central Railroad Co., 5 Hun 488; s. c. 7. N. Y. 617 ; Treadwell v. New York, 1 Daly 123; Whaalen v. Mad River Railroad Co., 8 Ohio (N. S.) 249. In an action by an employee against his employer, for an injury sustained by negligence, the plaintiff must establish affirmatively, that the negligence was that of the defendant, and not of a fellow-servant: Rose v. Boston and Albany Railroad Co., 58 N. Y. 217; Sammon v. New York and Harlem Railroad Co., 62 Ibid. 251; Besel v. New York Central Railroad Co., 70 Ibid. 171.
     