
    Jane Linton Morris, Administratrix, etc., Resp’t, v. Walston H. Brown et al., App’lts.
    
      (Court of Appeals,
    
    
      Filed November 27, 1888.)
    
    f. Negligence—Master and servant—When master not liable.
    Oh the trial of an action to recover under the statute for the death of plaintiff’s intestate, alleged to have been caused by the defendants’ negligence, it appeared that the defendants, under a contract with the Aqueduct Commissioners of the city of New York, were engaged in constructing a tunnel by excavation. That the decedent was a civil engineer in the employ of the commissioners, whose, duty it was to inspect for them the work of the defendants, “to see that it was done in compliance with their contract,” and that the defendants bound themselves to furnish “all facilities for the purpose of inspection.” That the shaft had been opened about 350 feet on a descending grade, and the defendants had a track therein, over which by the aid of a stationary engine and a cable attached thereto, and to open boxes or dump cars, they drew out stone and other material broken off by blasting. That the cars returned by gravitation at a speed to be regulated by a brake. On the day of the accident the decedent got upon the outside of one of these cars, and before reaching the end of the excavation was, through the omission of defendants’ servant to control the velocity of the car, thrown off and killed. There was an abundance of room left beside the track for persons to walk in the tunnel, and the usual me-ms of going in and out was on foot. There was no permission given by defendants to anyone to ride upon the cars, nor did they know that the car was at any time so used Held, that defendant was not liable; that they owed him no duty in respect to the use of the cars as a means of entering the shaft; that he voluntarily assumed the risk from which he suffered.
    2. Same—When master not liable for acts of servant.
    Where the servant instead of doing that which he is employed to do-, does something which he is not employed to do at all, the master cannot he said to do it by his servant, and is not responsible for the negligence of his servant in doing it.
    3. Same—Definition of—When there cannot be.
    Negligence is an omission of care and caution in what we do. But the duty to be actively cautious and vigilant is relative, and where that duty has no existence between particular parties there can he no such thing as-negligence in the legal sense of the term.
    Appeal from a judgment of the supreme court, general term, second department, affirming a judgment in favor of the plaintiff entered upon a verdict rendered by a jury at the Westchester county circuit.
    
      Edward T. Lovatt, for app’ts; C. A. Kellogg, for resp’t.
   Danforth, J.

The defendants, under a contract with the aqueduct commissioners of the city of New York, were engaged at Croton dam in the construction of a tunnel by excavation. The decedent was a civil engineer in the employ of the commissioners, and it was his duty to inspect for them the work of the defendants, “to see that it was done in compliance with their contract,” and the defendants bound themselves to furnish “all facilities for the purpose of inspection.” The shaft had been opened about 350 feet on a descending grade and the defendants had a track laid therein, over which, by the aid of a stationary engine and a cable attached thereto, and to open boxes or dump cars, they drew out stone and other material broken off by blasting. The cars returned by gravitation at a speed intended to be regulated in part by a brake applied to a drum over which the cable ran.

On the 24th of September, 1885, the decedent got upon the outside of one of these cars, and before reaching the end of the excavation was, through the omission of defendants’ servant to attach the cable to the car, or otherwise control its velocity, thrown off and killed. At the close of the case defendants’ counsel asked for a dismissal of the-complaint upon the ground, among others, that the plaintiff had failed to show any duty or obligation on the part of the defendants to so manage the cars that they should be in safe condition and run with care to prevent injury to-the intestate. The request was refused and the case submitted to the jury by the learned trial judge as one where, for negligence on the part of the defendant, and freedom from negligence oh thp part of the intestate, the plaintiff might recover. The plaintiff had a verdict.

The important question upon this appeal is raised by the-exception taken to the refusal of the trial judge to dismiss the complaint.

At the request of the defendant the trial court charged the jury that “it is a matter of uncontradicted evidence that these cars were placed in this tunnel for the purpose of hauling out the debris, and not for the purpose of transporting passengers,” and also, “in the absence of a duty on the part of the defendants to transport the deceased in and out of the tunnel, he was a trespasser on the car.” As thus presented, the question of contributory negligence becomes unimportant, but if it were otherwise, and that question fairly in the case, I should have no hesitation in saying that under the evidence, as to the circumstances and the conduct of the intestate, it was one proper for the consideration of the jury and their conclusion upon it beyond the reach of this court.

On the other hand there is no suggestion of an intentional wrong practiced on the plaintiff and the only question is whether there was any duty on the part of the defendants to transport him into the tunnel, for it was while going in that he received injury. Of course the learned judge did not use the term “passenger,” as including only those who for a consideration or otherwise, might acquire the right to be in or on the cars, but to emphasize by contrasting it with the term indicating material substances or matter which necessity or convenience required to be taken from the tunnel. We may start then with the proposition that the cars were not intended by the owners for the transportation of human beings.

But the contention of the plaintiff is (1) that the car was one of the facilities for entering the tunnel and therefore under the contract the plaintiff entitled to its use; (2) that from the former use of the car there was an implied license that he might ride upon it, and therefore he was rightfully there. I am unable to find any foundation for the proposition.

It would not, I suppose, be claimed that by this contract the defendants were under any obligation to carry or furnish the intestate the means of carriage for himself from the place where his office or that of the commissioners might be, to the tunnel, whether that office was near to, or remote from it. Nor would the defendants be liable, if while they were running wagons for the transportation of tools or implements from their warehouse, the intestate had by the acquiescence of the driver often gone along, until finally on the way to the tunnel he received an injury by the overturning of the vehicle through the negligence or carelessness of the driver.

Nor would they be liable if the defendants themselves going to the tunnel in a carriage driven by their servant, the intestate had got up behind, and the servant, knowing it, had driven carelessly and injured him. If in either case or in thé case in hand the mischief had resulted from the personal act of the defendants, done with knowledge of the intestate’s presence, they would have been liable, and in either case the servant might be, but I can find no reason or principle upon which the defendants could be charged in in the absense of some personal act, or some authority by them for the act of the servant.

Clearly the inspector must find his way as best he could and at his own risk, to the mouth of the tunnel. His duty of inspection began there. It was to continue until the tunnel was finished. At what point then, if at all, did the obligation of carriage fall upon the defendants? I cannot discover it, nor can I see how the conveyance of the engineer has any relation whatever to the defendants’s duty to furnish facilities for inspection. If the shaft had been a rising one, or if the roof of the tunnel was so high that its condition could not be examined from below, it might be •the duty of defendants to prepare a scaffold, or furnish a ladder or other means of access, for without one or the other, or some artificial means the inspector could not approach the place to be inspected. But, however, that might be, the defendants could not be called on to carry him up the ladder or along the platform. The contract does not call for that accommodation.

So in the case before us, it is plain upon the testimony that there was no obstruction in the way of the engineer’s entrance into the tunnel, and that no facility was lacking to enable him to complete the work of inspection from the beginning to the end of the tunnel as then constructed. At the mouth or opening the entrance was obvious, and step by step the inspection could have been made precisely as well and as thoroughly as if the inspector had gone in on a railroad. There was no impediment. The duty of inspection seems to have been confided to the engineers, Ridgway, Larned, Gallery and the decedent. From the testimony of the survivors it appears that the guage of the track was three feet and a half, the theoretical width of the tunnel twelve feet, and its actual width not uniform. The distance between the track and the sides of the tunnel also varies; on the right hand side it is from four to four and a half feet and six feet. The space on the left hand side is mainly occupied by the air shaft. The track was single, .cars going at intervals as occasion required, but only in one .direction at any one time. The track and the space outside of the track was therefore available for the inspectors. Moreover, they did in fact usually and habitually, although not always avail themselves of that space and travel in and out on foot. It was comparatively seldom that either rode upon a car. Ridgway says, “ we could walk down through the roadway. I walked mosr. of the time myself and was accustomed to see the men walking out of the tunnel and walking in. One could walk on the track or by the side. It is only a question of ease. I can go from one end of that incline to another on foot, and do my work, and I do do it, and have been doing it since I went on the work January, 1885.” Lamed walked backward and forward to his work; in doing so used the track. Webster, a civil, engineer, employed by defendants, and of twenty-four years experience in such work, says: I have never ridden on these cars. I have gone in and out always on foot.” Co wen, also a civil engineer employed on the work by the commission and called by the plaintiff, says: “I did not regard those cars as facilities or means for taking people down or bringing them up. I regarded them particularly for bringing out debris and rocks from the heading.” There was nothing in the appearance of the cars to serve as an invitation to man. They were unprovided with seats, were wet from the drip of water and dirty from the loads they carried. As they were not furnished for such use, so there was no permission from the defendants, or any one of them, that they might be so used. But it is said this permission might be implied, because the intestate and others had before ridden upon the car. Without permission from, or duty on the part of the defendants to give it, I cannot see how that result follows.

On the contrary, a person so using the car, at each time took upon himself the risk and must abide by its condition, and the quality of the attendant at the time he so used it, and was entitled only not to be lead into danger. Negligence is an omission of care and caution in what we do.

But the duty to be actively cautious and vigilant is relative and where that duty has no existence between particular parties, there can be no such thing as negligence in the legal sense of the term. The plaintiff was in no position to complain of the defendants or their servants. The frame and dump the intestate got upon was not a vehicle for his carriage, but an instrument of labor, a mere implement, furnished by the defendants to their servants, as they might have provided a man with a basket or barrow, or a mule with panniers to take out the refuse, as in former times was the custom in doing such work. It might have been a scraper, or dirt shovel, or stone boat or dump cart, drawn by horses. In either case would the owner be liable to one who, seeking to use the machine for convenience in personal transportation, received an injury? Certainly not. Nor can he make out a better case because by the combination of a rail, wheels and stationary power, the same work was done, but more easily.

The benefit of the contract between the defendants and the Aqueduct Commissioners, no doubt extended to the plaintiff’s intestate, and the other agents of the commisioners, but if I am right in its construction, no liability arose from that contract to furnish the track, or car, or other means of entering the tunnel, or do more than not to obstruct the entrance of the commissioners or their agents, and I find nothing else to show how any liability or duty to the plaintiff could arise. However imperfect the track of the car, or however negligent or careless its manager may have been, they were not singly or in combination dangerous, nc-r would the plaintiff’s intestate have been harmed, if he had kept away from them. If in going out of, or entering the tunnel, or while engaged in the duty of inspection, he had been run over by the car, either from the careless management of the servant of the defendant having it in charge, or from its leaving the track by reason of the imperfection, either of the track or the car, a different question would have been presented, one which might well be answered in his favor upon the principles applied in the cases now cited in his behalf, viz.: Byrne v. Railroad Co., 104 N. Y., 362; 5 N. Y. State Rep., 722; Weinhold v. Acker, 49 N. Y. Supr. Ct. Rep., 182; Ackert v. Lansing, 59 N. Y., 646; and also Wendell v. Baxter, 12 Gray, 494.

The actual case is different. The plaintiff had a right to be in the tunnel for its inspection. The contract put the defendants under no obligation to carry him into the tunnel, nor by it did he acquire any right to be upon the car. Nor did he acquire that right through any consent, or act, or acquiescence, on the part of the defendants. All the witnesses agree that no permission was given by the defendants; no evidence tends to show that they even knew the car was at any time so used. The brakeman of the car had known it, but neither his knowledge nor assent could bind the defendants. He was not their agent for that purpose. It is a general proposition .that a master is chargeable with the conduct of his servant only when he acts in the execution of the authority given him. Here the servant had only to go up with loads of stone or dirt and return with the empty cars, the easiest and simplest of duties, with little responsibility, and engaged in an employment requiring only a low degree of intelligence, his discretion, at any rate, limited to the care and proper disposition of the loads entrusted to him; his position inferior to that of the driver of the wagon or carriage in the cases I have supposed. There is nothing whatever in the record to show that in not resisting the intestate’s entrance upon the car, or in consenting to it, he was acting in pursuance of any authority conferred on him. He had nothing to do and could, in the nature of things, have nothing to do, with human freight. The law, for reasons of convenience, makes a master liable for the act of his servant, even though the servant, in the performance of his duty, is guilty of a deviation or a failure to perform it in the safest or best manner, “but where the servant, instead of doing that which he is employed to do, does something which he is not employed to do at all, the master cannot be said to do it by his servant, and therefore is not responsible for the negligence of his servant in doing it” (Mitchell v. Crassweller, 13 C. B., 217), or as it is elswhere stated, “where the master, has neither ordered the thing to be done, nor allowed the servant any discretion as to the mode of doing it, I cannot see how, in common justice or common sense, the master can be held responsible.” McKenzie v McLeod, 10 Bing., 385.

In the case before us the brakeman was never told, or authorized, to carry any person, and if he acquiesced in, or by silence consented to, the intestate’s going in upon the cars, there is no evidence that in doing so he was acting in the line of his duty or within the scope of his employment. The deceased had, in fact, ridden upon the car; he had done so under no other permission, a volunteer, but in safety. In each instance, however, he must be deemed to have assumed the risk, and this last time ‘he was unfortunate. The consequences of that misfortunate should not be thrown upon the defendants.

In Beck v. Carter (68 N. Y., 283), the general proposition is maintained that “where the owner of land expressly, or by implication, invites others to come upon his land, if he permits anything in the nature of a snare to exist thereon, which results in injury to one availing himself of the invitation, and who at the time is exercising ordinary care, such owner is answerable for the consequences. It is also said, however, “if he gives but a bare permission to cross the premises, the licensee takes the risk of accidents in using the premises in the condition in which they are.

Among other cases cited is that of Hounsell v. Smyth (7 C. B. [N. S.], 731), in which, in denying a recovery, the court said : “No right is alleged; it is merely stated that the owners allowed all persons who chose to do so, for recreation or for business, to go upon the waste without complaint; that they were not churlish enough to interfere with any person who went there. He must take the permission with the concomitant conditions, and it may be perils.”

The case at ‘bar lacks even the elements which are so referred to. The plaintiff asserts a right, but has not established Id He does not show 'that the owners allowed anyone- to go upon the machine; he simply shows that the inferior servant employed to manage a dump car did not interfere with those persons who got upon-it. In the principal case (Beck v. Carter, supra), a recovery was allowed because, by use long continued, the land where the accident occurred had been made, for the time being, a public place and part of the highway.

In Sutton v. N. Y. C. etc., R. R. Co., 66 N. Y., 243, it is held that although a railroad company has by permitting people repeatedly to cross its tracks at a point where there is no public right of passage given, an implied license so to do it, raises no duty to active vigilance to those crossing to guard them from accident; that the licensees under it take the risk of the business. Nothing more can be said in favor of the intestate than that so far as the maóhine is concerned he was upon it by the tacit permission of the defendant’s employe, and as between himself and the defendant he was bound to take the equipage as he found it, and the driver or servant with such skill and care as for the time being he exercised. He chose between the machine so equipped and managed, and going in on his own feet. The defendants are in no view to blame either for his choice or for the evil results. On the contrarythe intestate was in the attitude of one consenting to bear a risk as a volunteer, a guest, a servant, or a bare licensee, and the principle on which cases relating to those classes are determined apply to him. In Gillshannon v. Railroad Cor., 10 Cushing, 228, a laborer on defendant’s road, while riding on a gravel train by defendant’s consent, and for mutual convenience to his place of labor, was injured by a collision caused by the negligence of the company’s servants in charge of the train. It was held that no action would lie against the company, although both servants were not in a common employment. The court were against'a recovery upon two grounds: 1. The immunity of the master from liability to a servant for injuries caused by the negligence of a co-servant: 2. Because he was injured while enjoying a privilege merely permitted to him, and of which he availed himself to facilitate his own labor. The first ground has no application here, but the plaintiff’s intestate is within the last alternative. The defendant’s business did not concern him, nor was the machine or manager provided for his use, and it would be great injustice to hold the defendants liable for an injury to one whose presence at the place of danger was unsolicited, and for whose safety there was no reason within their knowledge to provide.

The case of Eaton v. Delaware, Lack, and West. R. R. Co. (57 N.Y., 382) is an authority more in point than those before cited. After an elaborate discussion, it is there held that conductors of freight trains cannot create any liability on the part of their principals to a person taken by them on such trains, unless the principal in some way assents to it, and that a duty to be careful towards him could only spring up on the part of the principal by an act on the conductor’s part, coming within the scope of his authority. It is therefore unnecessary to pursue the subject further, and as we are of opinion that there is no testimony showing either that the defendants permitted the intestate to use the cars as a means of entering the shaft, or of any duty, owing by them in that respect, but on the contrary, that he voluntarily assumed the risk from which he suffered, we are constrained to hold that the learned trial judge erred in submitting the case to the jury.

The judgment should therefore be reversed and a new trial granted, with costs to abide the event, and it is so ordered.

All concur. 
      
       Reversing 4 N. Y. State Rep., 832.
     