
    Michael McLoughlin, Resp’t, v. New York Lighterage and Transportation Company, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed February 5, 1894.)
    1. Negligence—Contractor.
    The rule “respondeat superior ” does not apply where the negligent party is not the agent of the defendant, but an independant contractor.
    2. Bailment—Care.
    A bailee for hire is held to the exercise of ordinary care ón the part of himself and his servants, and he may be made to respond in damages only for the omission to exercise such care.
    Appeal from a judgment for plaintiff, recovered in the district court, in the city of Rew York for the second judicial district Action to recover damages for injuries sustained by plaintiff’s canal boat while in the employ of defendant as charterer thereof
    
      Charles W. Coleman, for app’lt; Henry W. Goodrich, for resp’t
   Bischoff, J.

Plaintiff was the owner of the canal boat “ H. B. Moore” which he chartered to defendant for the year expiring about January 1st, 1893. Thereafter, at various times during the year 1893, the boat was employed by defendant upon “catch time,” which was defined to mean the time intervening between the first receipt and the last discharge of freight. During the period of the charter, as well as while the boat was employed upon “ catch time,” it was injured while in the tow of tugs which were engaged by defendant to move the boat from place to place. These tugs were severally owned by the Easton & Amboy Rail-' road Company and with others constituted the fleet" of the Perth Amboy Towing Line, which was engaged in the business of towing, and the persons in command of the tugs were the employees of the latter. The evidence adduced on the trial indisputably shows that the injury sustained by plaintiff’s boat was, in each instance, the result of the carelessness or negligence of those in command of the tugs, and that the damages amounted to the sums awarded by the court below. The only question therefore which this appeal presents for our consideration is whether or not the defendant, as charterer or lessee of plaintiff’s boat, should respond in damages for the injuries.

The Perth Amboy Towing Line, being engaged in the business of towing, its relation to defendant was that of an independent contractor. Shearman & Redf. on Neg. §§ 76, etc.; Peck v. Mayor, etc. 8 N. Y. 222; Kelly v. Mayor, etc. 11 N. Y. 432; King v. N. Y. C. & H. R. R. R. Co., 66 N. Y. 181, citing Blake v. Ferris, 5 N. Y. 48; Am. & Eng. Ency. of Law, vol. 3 p. 822; Anderson's Law Diet. p. 251. Hence the Towing Company was not the agent of the defendant, nor the master and crew of the tugs its servants, Sturgis v. Boyer, 24 How. U. S. 110; Jackson v. Easton, 7 Benedict, 191, and the rule respondeat superior does not apply. Broom’s Legal Maxim's 843.

Assuming next, as respondent’s counsel contends, that the relation of plaintiff and defendant, with regard to the former’s boat was that of bailor and bailee for hire, or mutual gain, then the evidence is equally deficient to sustain the recovery. A bailee for hire is held to the exercise of ordinary care on the part of himself and his agents and servants, and he may be made to respond in damages only for the omission to exercise such care. The failure to return the chattel, or its return in a damaged condition, may be prima facie evidence of negligence, but if it be shown that the loss or damage of the chattel was not the result of the carelessness or negligence of the bailee, or of his agents or servants, the bailee is not liable. Claflin v. Meyer, 75 N. Y. 260; Siegman v. Keeler, 4 Misc. R. 530 ; 54 St. Rep. 125. What the effect of an agreement by defendant to return the boat in good condition would have been, it is unnecessary to discuss since no such agreement appears in the case at bar and the cases cited by respondent’s counsel in that respect have therefore no relevancy. No doubt exists of plaintiff’s right to recover against the employees of those in command of the tugs. The Wm. H. Webb v. Barling, 14 Wall. 406; Margaret v. Bliss, 94 U. S. 494.

Of the recovery defendant conceded its liability for twenty dollars for the use of plaintiff’s boat, and the judgment should therefore be reversed unless plaintiff will stipulate to reduce his recovery to twenty dollars with interest and the costs upon such recovery below in which event the judgment, as so reduced, is affirmed without costs. If such stipulation is not filed within ten days from service of the order to be entered herein the judgment is reversed with costs to appellant, and a new trial ordered.  