
    Keegan against The Western Rail Road Corporation.
    A rail road company which continues in use a defective and dangerous locomotive engine, after notice of its dangerous condition, is liable to one of its servants engaged in running such engine for an injury sustained by him, (without negligence on his part,) in consequence of such defects.
    Negligence on the part of the servant will not be presumed, where the fact of such negligence is no.t found by the jury or referee before whom the cause was tried.
    The cases which hold that a principal is not liable to one agent or servant for an injury sustained by him in consequence of the negligence of another agent or servant of the same principal, while engaged in the same general business, are only applicable when the injury complained of happened without any actual fault or misconduct of the principal, either in the act which caused the injury, or in the selection and employment of the agent by whose fault it happened.
    When a case comes before this court on appeal from a judgment rendered on the report of a referee, where there are no exceptions, and no distinct question of law appears to have been presented to and passed upon by the referee, the only question for review is, whether the facts found by him are sufficient to sustain the judgment.
    Action on the case commenced in the sureme court to recover damages for an injury sustained by the plaintiff by the bursting of a boiler of a locomotive engine upon which he was engaged as a fireman, on the defendants’ rail road.
    It was alleged in the first count of the declaration that the defendants, before and at the time of the committing of the grievances thereinafter mentioned, were the owners of a certain rail road, and of a carriage commonly called a locomotive, moved and propelled by steam, and by them used and employed in carrying and conveying passengers and goods upon and over their said road, from Greenbush, in the county of Albany, to Boston, in the state of Massachusetts, and intermediate places: that the plaintiff, on the first day of December, 1845, at Greenbush aforesaid, at the time of the committing of the said grievances, was in the employment of the defendants, as fireman upon said locomotive so moved and propelled by steam as aforesaid; and it then and there became and was the duty of the defendants to provide a good, safe, and secure locomotive, with good, safe, and secure machinery and apparatus to move and propel the same by means of steam as aforesaid. Yet the defendants, not regarding their duty, conducted themselves so carelessly, negligently and unskillfully in this behalf, that by and through the carelessness, negligence, unskillfulness and default of the defendants and their servants, in providing, using and suffering to be used an unsafe, defective and insecure locomotive, and for want of due care and attention to their duty in that behalf, on the day and at the place aforesaid, and whilst the said locomotive was in the use and service of the defendants upon their said rail road, and whilst the plaintiff" was on the sáme, in the capacity aforesaid, for the defendants, the boiler connected with the' engine of the said locomotive, by reason of unsafeness, defectiveness, and insecurity thereof, exploded, whereby large quantities of steam and water escaped therefrom and fell upon the plaintiff, by which he was greatly injured, &c.
    There were three other counts, not varying materially from the first, except in the statements of the damages. The defendants pleaded the general issue.
    The cause was tried in 1848 before Cornelius L. Tracy, referee, who reported the testimony at length, together with the following statement of the facts found by him:
    “ 1st. That in the month of December, 1845, and for about five months previous pretty much all the time, the plaintiff was in the employment of the defendants as fireman on one of the locomotives used by them; and that during that month the boiler of said locomotive exploded, causing the injuries to the plaintiff complained of.
    
      “ 2d. That the boiler of this locomotive was defective and dangerous; and that its condition in this respect was known to the defendants, and to the persons in defendants’ service, whose duty it was to sélect the engines which were to be used on the defendants’ road, for some weeks before the explosion; and that the defendants had been frequently notified thereof.
    “ 3d. That during the two months preceding the explosion, the engineer of this locomotive reported to the defendants, on five or six different occasions, the defective condition of the boiler thereof; and that these reports were entered on the books of the defendants kept for that purpose.
    “ 4th. That the injury to the plaintiff resulted from the improper conduct of the defendants, in using the locomotive with the engine in question, which was known to be thus defective.”
    The damages were assessed by the referee at $3500. Upon this report the supreme court in the third district rendered judgment in favor of the plaintiff for the damages assessed, and costs, and the defendants prosecuted this appeal.
    
      M. T. Reynolds for appellants.
    I. The plaintiff knew the condition of the engine, and voluntarily assumed the risk, whatever it was, with full knowledge of its extent.
    II. The defendants are not responsible to the plaintiff while in their service for an injury accruing from the negligence of another servant in their service. (4 Metcalf, 49; 1 McMullen S. C. Rep. 385, Murray v. The S. Carolina R. R. Co.; 3 Mees and Welsb. 1, Priestley v. Fowler; 6 Hill, 592; 4 Mees, and Welsb. 337, Levy v. LaGrange; 10 Mees, and Welsb. 109, Winterbottom v. Wright; 5 Welsb. Hurls. and Gord. 343. Hutchinson v. New Castle and Berwick R. R. Co.; Ib. 354, Wigmore v.Jay; 6 Barb. 231, Coon v. S. and U. R. R. Co.; S. C. 1 Seld. 492.)
    
      N. Hill, jr., for respondent.
    I. There is nothing in the record to show that the attention of the referee was called to any question of law, or that there has been an actual 
      
      decision of any such question in the court below. No appeal, therefore, will lie. (Code of Procedure, § 11; Davenport v. Covert, M. S. Ct. of Appeals, Oct. 1852; S. C. 5 Law Reporter, 399, new series; 7 Barb. 582; 2 Comst. 188; 6 How. Pr. R. 280.)
    II. The elements essential to maintain the action are, the dangerous nature of the engine, the knowledge by the defendants, and the injury resulting from their subsequent use of it; all of which are alleged and proved.
    1. The action rests on the same principal with that relating to injuries by animals known to be dangerous. (2 Starkie on Ev. 525, 6 Am. ed. 1837.) There the owner must at his peril keep the animal secured, or he will be answerable, and even negligence need not be alleged. (9 Ad. and Ellis, 101, 110 to 113, May v. Burdett; 15 Mees, and Welsb. 563, Jackson v. Smithson; 1 Hale’s Pl. C, 430, Ed. 1800; 17 Wend. 496, 500, Loomis v. Terry.) If he wilfully omits to do so, and a man is killed, it is murder; if negligently, it is manslaughter. (2 Ld. Raym. 1583, Rex v. Huggins; 1 Hale’s P. C. 430, Ed. 1800; Archb. Cr. Pl. 421, 2 Ed. 1846; 2 Stark. Ev. 525, 6 Am. Ed. 1837.) 2. Again, using an engine known to be dangerous is in principle like employing a servant known to be unskillful; and for injuries resulting from this the defendants would clearly be liable. (6 Barb. 243, per Pratt, J.; Story on Agency, § 321; 4 Met. 49, Farwell v. B. and W. Rail Road Co.; 5 Welsb. Hurlst. and Gord. 353.)
    III. The adjudged cases relating to injuries to one servant by the negligence of another, do not conflict with, but maintain the principle on which this action rests. 1. They go no further than to deny that the principal is liable to one servant for an injury sustained by the mere negligence of another, while both are engaged in the same service; the principal not being in fault. (4 Met. 49, Farwell v. B. and W. Rail Road Co.; 3 Cush. 270, Hayes v. Western R. R. Co.; 6 Barb. 231, Coon v. S. and U. R. R. Co.; S. C. on appeal, 1 Seld. 492; 6 Hill, 594, Brown v. Maxwell; 3 Mees. 
      
      & Welsb, Priestly v. Fowler; 1 McMullen's R. 385, Murray v. S. Car. R. R. Co.; Contra, 3 Law Reporter, 74, New Series; 1 McMullen’s R. 402 to 409.) 2. None of them deny, but most if not all of them concede that the principal would be liable if he was in fault as well as the servant; e. g. by employing him, with knowledge that he was unskillful, or by using an engine, knowing it to be defective. (4 Metcalf, 61, 62; 6 Barb. 243; l McMullen, 400, 401; 5 W. H Gord, 353.) 3. The fact that the persons entrusted to select the engines were in fault, as well as the defendants forms no ground of defence. (1.) The plaintiff was a mere fireman, and had not equal opportunities of knowledge with the defendants as to the danger; the latter having actual notice. (2.) Even if the plaintiff knew that the boiler was defective, which is not found, he did not know that it was dangerous, this being a question of science on which even experts might differ. (3.) The persons entrusted to select the engines were engaged in a distinct employment from that of the plaintiff, and the defendants would be answerable, therefore, even if they were without actual fault. (See per Gardiner, J. 1 Seld. 494, 495.) (4.) But the declaration avers, and the referee has found, that the defendants caused the injury, and it is immaterial how many others were in fault.
    IV. Using the engine in question was an act dangerous to human life, and having been done knowingly, the defendants are responsible, even if the plaintiff was in some degree negligent, which is not found. To excuse them they must show the plaintiff' had notice of the danger. (15 Eng. Com. Law Rep. 91, 93 to 96, Bird v. Holbrook; 17 Wendell, 498, 499, Loomis v. Terry; 21 Wendell, 618, 619. Hartfeld v. Roper; 41 Eng. Com. Law Rep. 422, Lynch v Nurdin.
    
    V. The pretence that the plaintiff' knew of the danger is inconsistent with the position assumed by the defendants on the trial, viz: that the defects in the boiler did not indicate that it was dangerous. It is enough, however, that no notice to the plaintiff has been found by the referee.
    VI. The case shows that the defendants persisted in running the engine in question under circumstances evincing an utter blindness to every thing except their own pecuniary profit. It is not a case of simple negligence, but-of intentional wrong, and there is no principle on which they can be held irresponsible. (16 Wendell, 649, Gough v. St. John; 3 Maule & Selw. 11, King v. Dixon; Greenl. Ev. § 18; 3 Met. R. 472; Lobdell v. Baker.
    
   Ruggles, Ch. J.,

delivered the opinion of the court: This case comes before the court on the report of a referee in the nature of a special verdict, and the question is, whether, upon the facts found, the defendants are liable.

The plaintiff was injured by the explosion of the boiler of a locomotive engine on which he was employed by the defendants as a fireman. The boiler was defective and dangerous, and its condition in this respect was, and had for some time been known to the defendants by the. reports of the .engineer made on five or six different occasions, which were entered on the books-of the defendants kept for that purpose, and the injury- to the plaintiff resulted from the improper conduct of the defendants in using the engine in question thus known to be defective.

On this statement of facts no doubt can be entertained of the liability of the defendants.

The cases referred to, in which it has been held that a principal is not liable to one agent or servant for an injury sustained by him in consequence of the misfeasance or negligence of another agent or servant of the same principal, while engaged in the same general business, are not applicable to the case now under consideration. They are applicable only where the injury complained of happened without any actual fault or misconduct of the principle, either in the act which caused the injury, or in the selection and employment of the agent by whose fault it did happen. Whenever the injury results from the actual negligence or misfeasance of the principal,-he is liable as well in the case of one of his servants as in any other. But where the injury results from the actual fault of a competent and careful agent, (as may sometimes happen,) the fault will not be imputed to the principal when the injury falls upon another servant, as it will where the injury falls on a third person, as for instance on a passenger on a rail road. In the case of a passenger the actual fault of the agent is - imputed to the principal on grounds of public policy; in the case of a servant it is not. The reasons for this distinction may be found in the cases cited by the appellants’ counsel. But it is unnecessary to state them here, because the injury in the present case is found to have resulted directly from the negligence or misconduct of the defendants themselves, in continuing to use an engine having a defective and dangerous boiler, after notice of its dangerous condition.

It was made a point on the argument that the plaintiff knew the condition of the boiler, and therefore took the risk upon himself. But this point is not sustained in point of fact. The referee does not find that the plaintiff knew it to be in a dangerous condition, and this fact, if material, can not be presumed by the court.

Judgment affirmed  