
    John Loughlin, Res’pt, v. State of New York, App’lt.
    
      (Court of Appeals,
    
    
      Filed March 22, 1887.)
    
    1. Master and servant—Negligence—Co-servant.
    The plaintiff was set at work by the captain of a State boat, digging clay from under a bank, after the captain had loosened the overhanging earth, so that it fell upon and injured plaintiff. Held, that the State was not liable, that it was a risk incident to the employment, which the claimant assumed, and the injury not being one for which the master, as an individual, would be liable, it is not therefore one for which the State is liable. .
    2. Same.
    The liability of a master for the negligent act of one servant, causing injury to a co-servant, does not rest upon the doctrine of respondeat superior, but solely upon the ground that in the particular case the co-servant whose act or neglect caused the injury was, by the appointment of the master, charged with the performance of duties which the master was bound to perform for the protection of his servants, a failure to perform which, or a negligent performance of which by a servant delegated to perform them is regarded in law the master’s failure or negligence, and not merely the failure or negligence of the co-servant.
    3. Same—Servant of higher grade.
    The feet that the person whose negligence caused the injury was a servant of higher grade, than the servant injured, or that the latter was subject to the direction or control of the former, and was engaged at the time in executing the orders of the former, does not take the case out of the rule.
    Appeal by defendant from an award of $1,200, made September 10, 1885, by the State Board of Claims to plaintiff, for an injury received while in defendant’s employ.
    D. O’Brien, att’y-gen’l, for app’lt; A. D. Wait, for resp’t.
   Andrews, J.

We think the award in this case is in conflict with the decisions of this court defining the responsibility of employers for injuries sustained, by servants while engaged in performing the service for which they were employed, resulting from the, negligence of co-servants. The master is sometimes responsible for the negligent act of one servant causing injury to a co-servant; but this liability, when it exists, does not rest upon the doctrine of respondeat superior, but solely upon the ground that in the particular case the co-servant whose act or neglect caused the injury was, by the appointment of the master, charged with the performance of duties which the master was bound to perform for the protection of his servants, a failure to perform which, or a negligent performance of which, by a servant delegated to perform them, is regarded in law as the master’s failure or negligence, and not merely the failure or negligence of the co-servant.

The liability of the master, when the negligence was not his personal act or omission, but the immediate act or omission of a servant, turns, as was said in Crispin v. Babbitt (81 N. Y., 521), upon the character of the act, and this was hut the enunciation of' the established doctrine in this state upon the subject. If the co-servant whose act caused the injury was at the time representing the master in doing the master’s duty, the master is liable. If, on the other hand, he was simply performing the work of a servant in his character as a servant or employee merely, the master is not liable. The injury in the case last supposed would, as between the master and the servant sustaining the injury, be attributable solely to the immediate author, and not to the master. In harmony with the general principle that the character of the act is the decisive test, it has been repeatedly decided in this court that the fact that the person whose negligence caused the injury was a servant of a higher grade than the servant injured, or that the latter was subject to the direction or control of the former, and was engaged at the time in executing the orders of the former, does not take the case out of the operation of the general rule, nor make the master liable. Hoffnagle v. N. Y. C. R. R. Co., 55 N. Y., 608; McCosker v. L. I. R. R. Co., 84 id., 77; Allen, J., in Wright v. N. Y. C. R. R. Co., 25 id., 565; Folger, J., in Laning v. Same, 49 id., 528.

These decisions are decisive against the claim of liability on the part of the state for the injury sustained by the claimant. It is found that it resulted from the negligence of Wells, the captain of the state boat, who at the time was engaged, with several hands employed on the boat (including the claimant), in digging clay from a bank and loading it on the boat. The negligence consisted in setting the claimant to work under the bank after Wells had loosened the overhanging earth, so that it fell upon and injured the plaintiff. The case is within the decisions above cited. Wells, although captain of the boat, with power to direct those under him, was nevertheless a- co-servant within the rule. The manner of proceeding with the work was committed to Wells. It involved the exercise of such discretion and judgment only as is committed to a foreman. It is not claimed that Wells was incompetent for his position, and no question as to the suitableness of appliances furnished by the state, arises. It is the ordinary case of mismanagement by a co-employee of superior grade as to the manner of prosecuting an ordinary work in which he, and other employees acting under him, were at. the time engaged. This was a risk incident to the employment which the claimant assumed, and the injury not being one for which the master, if an individual, would be liable, it is not, therefore, one for which the state is hable under chapter 321 of the Laws of 1870.

The case of Chicago, M. and St. P. R. R. Co. v. RRoss (112 U. S., 377, 5 Sup. Ct. Rep., 184), cited in the opinion below, was decided by a bare majority of the court, and is in conflict with the course of decision in this state and elsewhere. Slater v. Jewett, 85 N. Y., 61; Wilson v. Merry, L. R., 1 H. L., 326; Farwell v. Boston and W. R. R. Co., 4 Metc., 49.

The award should be reversed and the case remitted to the board of claims for a rehearing.

All concur.  