
    ANTHONY McGARRY, Respondent v. THE NEW YORK AND HARLEM RAILROAD COMPANY, Appellant.
    
      Action by plaintiff while in the employ of the company-clefendant, for damages resulting from injuries received from being bitten and JcicJced by a vicious horse, owned by the company-
    
    The first position held by defendant is that there was no evidence that the horse was dangerous and vicious, or accustomed to attack or hurt those handling and caring for him. Held, that the'plaintiff was entitled to the judgment of the jury on this point.
    
      It was further claimed by defendant that if the horse was vicious there was no evidence that the defendant knew it. The evidence upon this point related to the knowledge and action of one Totten and one McQuade, who were claimed to be the agents of defendant and in such relation to and service with the defendant as made their knowledge the knowledge of the defendant. Held, that this was a question of fact proper for the jury, and that, under the circumstances proved, Totten’s knowledge was the knowledge of the defendant, as was also the knowledge of McQuade; that they were both agents of defendant, and the defendant was bound by their knowledge. Held also, that the court below correctly refused to charge the jury, that even if the men employed by defendant in the stable to keep and take care of the horses knew of the horse’s viciousness, yet that fact did not charge the defendant with notice or knowledge.
    There was an objection raised to the court instructing the jury to find whether or not defendant owed a duty to plaintiff, to instruct him with respect to the character of the horse in question. Held, there was such a duty if the horse was dangerous and known to be so by McQuade, who put the plaintiff to work upon the horse, as the jury might find. There was no error in this instruction. The employment of plaintiff by defendant was to attend to horses not vicious or dangerous. If the plaintiff was ordered to attend a horse that was dangerous or vicious, it was the duty of the employer to warn his servant of the character of the horse and of the risk he was about to take if that character was known to the employer.
    
      Held, that the court correctly refused to charge that the plaintiff, in order to recover, must satisfy the jury that the horse in question had, prior to the accident, done mischief similar to that complained of, and that the defendant knew it. It was sufficient to create liability on this point, that what defendant knew previously of the character of the horse would lead a reasonable mind to infer that the horse was likely to behave as he did in the present instance.
    Before Sedgwick, Ch. J., and Gildersleeve, J.
    
      Decided March 14, 1892.
    Appeal by defendant from a judgment entered upon the verdict of a jury.
    
      Charles T. Titus, attorney, and M. H. Hirschberg of counsel, for appellant, argued :—
    I. There was no evidence whatever tending to show that the horse was “dangerous and „vicious,” and 
      “ accustomed to attack and hurt any person who attempted to handle and take care of him.” 1st. There was proof that the animal was nervous when about to be shod, and that he then required tying. But the witnesses testified and the court said, “ He might have been dangerous under those circumstances and not otherwise,” and the court charged the jury that the fact that the horse was unruly on such occasions does not justify the conclusion that the defendant knew it would be unsafe for the plaintiff to go into his stall for the purpose of feeding him; and also that the knowledge of this fact on the part of the blacksmiths was not the knowledge of the defendant. 2nd. The only proof of any vicious act on the part of the horse while in the stable was the testimony of Talt, already referred to. The judgment cannot be upheld by that proof. It is unconsequential and remote. The horse did not kick or hurt Talt. Talt never told anyone what the horse did do, not even McQuade. He merely informed McQuade that he should be careful about handling the horse’s hind feet, etc., without repeating to him anything the horse had done. The court will search the case in vain for any proof that prior to September 11, 1889, the horse had acted in the stable in any worse way than the other horses, or in any manner indicating that it was in any way unsafe or dangerous to handle and feed him.
    II. If the horse was vicious there was not the slightest proof that the defendant knew it. Assuming that knowledge on the part of Mr. Totten, the stable foreman, would be knowledge by the defendant, yet no witnesses pretended that Totten was aware of any vicious act exhibited by the animal. Even if the men employed in the stable did know of the horse’s assumed vicious propensities, that fact did not charge the defendant with notice thereof. Shaver v. N. Y. & Lake Champlain Co., 31 Hun, 55.
    
    III. It was incumbent on the part of the plaintiff to show affirmatively that the defendant had' actual notice of the vicious propensities of the horse. Van Leuven v. Lyke, 1 N. Y., 515; Moynahan v. Wheeler, 117 Ib., 285; and Shaver v. N. Y. & Lake Champlain Co., cited above. The plaintiff claimed that McQuade’s knowledge was notice to the defendant; in other words that his knowledge was imputable to the master. McQuade’s relation to the defendant was clear and undisputed. He was one of forty or fifty grooms in the stables employed to feed and take care of the teams while in the stable. He was employed in the same capacity precisely as the plaintiff was. Whether or not his knowledge was the knowledge of the master therefore was a question of law. But the judge submitted it to the jury to decide as a question of fact. The defendant subsequently requested the court to charge that McQuade’s knowledge was not the knowledge of the defendant, which request was refused and the defendant excepted.
    
      Francis C. Devlin, attorney and of counsel, for respondent, argued:—
    I. From the facts it appears: 1st. That the horse was dangerous and vicious. 2nd. That the defendants’ general stable superintendent Totten and their special superintendent over this gang of sixteen horses— McQuade—knew that he was a vicious "and a dangerous horse. 3rd. That defendants neglected to warn plaintiff or to notify him that the horse was vicious and dangerous. 4th. That with this knowledge defendant sent plaintiff to this horse without any notice or warning whatever of the great danger they exposed him to, and that in consequence thereof he received these injuries. Mr. Totten, the general superintendent of this defendant-corporation’s stables, hired the plaintiff; and then gave him in charge of Mr. McQuade, who had charge of this gang of horses. Both of these men then knew the vicious propensities of this horse. These men—Totten and McQuade—were not co-servants with the plaintiff but were the defendant-corporation’s representatives in this branch of their business. Crispen v. Babbitt, 81 N. Y., 520, 521. Held—The liability of the master does not depend upon the grade or rank of the employee causing the injury to a co-employee; if it results from the omission of some duty intrusted to such employee. Flike v. Boston & Albany R. R. Co., 53 N. Y., 549—553; Benzing v. Steinway & Sons, 101 Ib., 547-552. See also the case of Criswell v. Pittsburg C. & St. L. R. Co., 30 W. Va., 789. Held—a foreman in charge of a gang of railroad laborers with power to discharge them subject to the approval of the supervisor and under the duty to see that they work faithfully is the direct representative of the railroad company and not a fellow-servant with the laborers. The owner of a vicious horse which kicked a colt is not relieved from liability by the fact that at the time the servant of the OAvner of the horse had without the owner’s knowledge or consent temporarily placed the horse in charge of a third person. Campbell v. Trimble, 75 Tex., 270, 12 S. W., 863. A person entrusted with the control of work, and who has authority to direct the servants where and when to work, may be regarded as a vice-principal. Cox v. Syenite Granite Co., 39 Mo. App., 424. A night boss who has charge of a coal mine with authority to direct operations is not a fellow-servant with an ordinary laboring miner. Consolidated Coal Co. v. Wombacher, 31 Ill. App., 288. The foreman of a brick company’s clay mine who had entire charge of mining and shipping the clay and hiring and discharging the laborers, is not a fellow servant of an ordinary laborer working in the mine. Chicago Anderson Pressed Brick Co. v. Sobkoniak, 34 Ill. App., 312. The foreman of a section-gang in charge of a hand-car, is not a fellow-servant with one of the workmen, so as to relieve the company from his negligence in respect to the condition of a wooden handle to the hand-car. Banks v. Wabash W. R. Co., 40 Mo. App., 458. The fact that a boss ” personally acted in a negligent manner, whereby an employee working under his orders was injured, will not relieve the master of liability, where the act was one within the scope of the boss’ authority to direct and supervise as the master’s representative. Gulf, C. S. F. R. Co. v. Wells (Tex.), 16 S. W., 1025; Nall v. Louisville, N. A. C. R. Co. (Ind.), 28 N. E., 183; 44 Alb. L. J., 230; Dayharsh v. Hannibal and St. J. R. Co., 103 Mo., 570, 15 S. W., 554.
    H. The learned judge in refusing defendant’s motion for a new trial held that the evidence showed that the man placed by defendant in charge of their horses, had knowledge prior to plaintiff’s employment, of the vicious propensities of the horse, and that this knowledge was the knowledge of the defendant, and cited the following cases : Baldwin v. Casella, L. R., 7 Ex., 325; Applebee v. Percy, L. R., 9 C. P., 647; Clerk & Lindsell Law of Torts, 350; Sheehan v. N. Y. C. & H. R. R. Co., 91 N. Y., 334; Held, Daeforth. J., “ Where a master delegates to another control over a branch or circumstance of his business the person so delegated stands in the place of the master as to all duties resting upon him to his servant; and his knowledge, acts and omissions are the knowledge acts and omissions of the master himself.” [91 N. Y. foot of p. 324.] Sutton v. Dillage, 3 Barb., 529, Held, “ Knowledge of a particular fact acquired by an agent in the course of business is the knowledge of the principal.” To the same effect. Ingalls v. Morgan, 10 N. Y., 178; Jeffrey v. Biglaw, 18 Wend., 518. In 1st Waifs Actions and Defences, page 231, the rule is laid down as follows: “ It is a duty of every agent to notify his principal of all facts which came to his knowledge, if they will or may materially affect the rights or interest of such principal. The law presumes that an agent will perform this duty, and, therefore, the rule is conclusively settled that the principal knows whatever the agent knows in relation to the business of the agency.” Sutton v. Dillaye, 3 Barb., 529; Meehan v. Forrester, 52 N. Y. [7 Sick], 277; Ingalls v. Morgan, 10 N. Y. [6 Seld], 178, 184; Hove v. Blanchard, 13 N. H., 145; Smith v. Water Com., 38 Conn., 208; Philadelphia v. Lockhart, 73 Penn. St., 217; Slater v. Irwin, 38 Iowa, 261; Baldwin v. Casella, L. R. 7 Exch., 325; S. C. 3 Eng. Rep., 434; Applebee v. Percy, L. R. 9 C. P., 647—22 W. R., 704—43 L. J. [C. P.], 365; 30 L. T. [N. S.], 785.
    HI. It is a fundamental principle of the law of master and servant that the master provide the servant with safe implements or animals for the purposes of the work he hires him for, and for any injury caused by his failing to do so he is liable. McGovern v. C. V. R. R. Co., 123 N. Y., 287, foot of page; Pantzar v. Tilly Foster Iron Co., 99 Ib., 372; 44 Albany Law Journal, 231 and 497, and cases there cited; Nall v. N. A. & C. R. Co., Ind. Supreme Court, June 19, 1891; Car Co. v. Parker.
   By the Court.—Sedgwick, Ch. J.

The action was for damages alleged by the complaint to have been suffered by the plaintiff from his being bitten and kicked by a vicious and dangerous horse, known by the defendant to be vicious and dangerous. At the time of the occurrence the plaintiff was employed by the defendant as hostler, and it was part of his duty to care for the horse. When he was injured he was in the stall, about to feed the horse.

The first position taken for the appellant is that there was no evidence that the horse was dangerous and vicious or accustomed to attack and hurt any person handling and caring for him. On the circumstances in evidence and on inferences that might be drawn from them, the plaintiff was entitled to the judgment of the jury on this point.

It is further argued that if the horse was vicious there was not the slightest proof that the defendant knew it. On the trial the plaintiff claimed, that the relation of two employees of the defendant was of such a kind that their knowledge was the knowledge of the defendant. One of these, named Totten, was the superintendent of the stable, which contained about 1,000 horses. It was the duty of the defendant to the plaintiff, as its employee, to use a reasonable degree of observation to ascertain the character of the horses, and to prevent any horse that was dangerous being kept in a stall for the work of a man upon it. If Totten was in the performance of this duty upon the delegation of the defendant, and that was a question of fact proper for the jury, the jury might have also competently found that Totten was informed of the viciousness of the horse, and for that reason had caused him to be transferred from one floor to another. Under the circumstances proved, it should be held, that Totten’s knowledge was the knowledge of the defendant.

The other employee was one McQuade. His employment did not have as wide a scope as that of Totten. In the stable he assisted in grooming horses, but he was not a mere groom. He had charge, with two or three men under him, of a gang of sixteen horses. There were particular circumstances tending to show that he was a servant of more authority than the grooms. The evidence was such that the jury would be authorized to find that part of McQuade’s duties was to look generally after the horses in his charge, to notice whether any were vicious and to cause its removal, or that a groom should not be sent into the stall with it. If such were the case, he was an agent of the defendant in this regard, and it was bound by his knowledge. There was testimony for the jury that McQuade had knowledge that the horse was dangerous.

The learned counsel for the appellant objects that the judge left it to the jury to say whether the knowledge of McQuade was the knowledge of the defendant. The objection would he well founded if the testimony incontrovertibly showed that the relation of McQuade to the defendant was such that his knowledge could not be imparted to defendant. As we have already said, the jury could find that the testimony as to McQuade’s employment signified that he was in the place of the defendant, performing certain duties what it was hound directly to the plaintiff to perform.

The court was asked, for defendant, to charge the jury that even if the men employed in the stable to keep and take care of the horses did know of the horse’s viciousness, that fact did not charge the defendant with notice or knowledge. The court correctly refused to make this charge. The charge included McQuade, and we have already held that, for the purpose involved, the jury might find he held the place of the defendant.

It was objected to the court’s charge, that if Tait, a stableman, told McQuade that the horse was vicious, that was sufficient to put the defendant on inquiry, and that if the defendant did not inquire, the jury could find that it had notice that the horse was vicious. This charge seems correct when viewed with that part of the charge that instructed the jury to find, in substance, whether it was part of McQuade’s duty to observe what was the character of the horse. The court made a specific reference to this by saying, that is, if McQuade was the person in charge of the horse, then such a notice to McQuade would he notice to the defendant and put it on inquiry. There was nothing objectionable in the charge that this inquiry, if made by McQuade, would have undoubtedly resulted in ascertaining what sort of ahorse it was. From the testimony in the case there is no doubt that McQiuade could have learned the character of the horse as it was.

The defendant excepted to the refusal of the court to charge, that if the horse from the time of his purchase by defendant, had been fed and cared for in the manner the plaintiff was required to feed and care for him without to the defendant’s knowledge attacking or injuring any person while so being fed and cared for, the defendant was justified in believing that it was safe for the plaintiff to feed and take care of him, and the plaintiff could not recover. The request does not seem to have been correct if the defendant had no knowledge of whether the horse was dangerous in the stall or whether he was not, a belief that he was not dangerous would not have been justified.

There was- an objection to the court instructing the jury to find whether the defendant owed a duty to plaintiff to instruct him with respect to the character of the horse in question. There was such a duty, if, as the jury might find, the horse was dangerous and known to be so by McQuade, who put the plaintiff to work upon the horse. The employment was to attend to horses, not vicious or dangerous. If the plaintiff were ordered to tend a horse that was dangerous or vicious, it was the duty of the employer to warn the servant of the character of the risk he was about to take if it were known to the employer.

The court refused to charge that the plaintiff in order to recover, must satisfy the jury that the horse in question had, prior to the accident, done mischief similar in character to that complained of, and that the defendant knew it. The charge was correct. For it was sufficient to create liability on this point, that what the defendant knew previously of the disposition and conduct of the horse would lead a reasonable mind to infer that the horse was likely to behave as he did in the present instance.

The defendant requested a charge that the declaration of the men employed by the defendant in the stable and shop, as to the habits and disposition of the horse, are not competent or sufficient to charge the defendant with knowledge. This was charged by the court, and then there was a charge as to what was the effect of such declarations if they were made to McQuade. This subject has already been referred to. There was no error.

Judgment and order affirmed, with costs.

Gildersleeve J., concurred.  