
    Tobias Weyant v. The New York and Harlem Railroad Company.
    The plaintiff was thrown out of his wagon by a collision with a railroad ear, the property of the N. Y. and N. H. R. E. Co., but which was drawn by horses owned by the N. Y. and H. R. R. Co., and was driven by a driver in their employ.
    
      Held, that the plaintiff’s action for the injuries sustained by him was properly-brought against the N. Y. and H. R; R, Co., the proprietors of the horses and employers of the driver.
    (Before Oakley, C. J., Campbell and Boswokth, J.J.)
    May 9;
    May 20, 1854.
    
    This action was tried before Mr. Justice Duer and a.jury, on the 14th of Hovember 1853. The pleadings and evidence established the following facts.
    ' The defendants, The Hew York and Harlem Railroad Company, were proprietors of a railroad running through certain streets in the city of New York, The cars of the New York and New Haven Eailroad also regularly passed over the defendants’ track for a considerable distance in the city, and in Canal street there was a short line of track, leading from the track used by the defendants and the New Haven Eailroad Company in common, to the depot of the New Haven Eailroad Company in Canal street. This short track had been laid down by the defendants for the use of the New Haven Eailroad Company. The Harlem Company, the defendants, were further under contract with the New Havén Company to draw the cars of the latter, furnishing horses and drivers therefor, from their Canal street depot up to Thirty-first street.
    The plaintiff was a dealer in ice, engaged in the business of supplying customers from a covered ice-cart. On the 25th day of July, 1851, the plaintiff, in his wagon, was passing through Canal street, on the right-hand side of the track, and between the track" and a pile of bricks. A car owned by the New Haven Company, but drawn by horses owned by the Harlem Company, and driven by a driver in their employ, came up behind his wagon, and, through the uncontroverted negligence of the driver of the car, it struck the wagon, broke it, threw the plaintiff out, and passed on, leaving the plaintiff and his horse and wagon, as .one of his witnesses expressed it upon the trial, “ all in a heap up against the bricks.”
    • The driver of the car was in general subject to the directions of the conductor employed by the New Haven Company, but it did not appear that the conductor had given him any directions at this time.
    The learned judge who tried, the cause charged the jury, that if the collision happened through the negligence of the driver of the car, and without any negligence on the part of the plaintiff, the latter was entitled to recover. He further instructed them for the purposes of the trial, that the action, if it could be sustained at all, was properly brought against the defendants. To this portion of the charge the defendants’ counsel excepted.
    The jury found for the plaintiff, and assessed his damages at five hundred dollars. Judgment was reserved, with leave to the plaintiff to move for judgment upon a case to be made, and upon such motion subsequently made, judgment was rendered for the plaintiff, from which the defendants now appealed.
    The only question discussed upon the appeal was, whether the defendants were the party liable.
    
      C. W. Sandford, for appellants.
    
      E. H. Owen, for respondent;
    
      
       Reported by Lyman Abbott, Esq, and the opinion of the judge taken down by him in short-hand.
    
   By the Court. Campbell, J.

In this case the facts are briefly these. Weyant was thrown out of his wagon and injured in Canal street, by a car which belonged to the Hew Haven Railroad Company, but the horses which drew it, and the driver who was driving it, were in the employ of the defendants, the Harlem Railroad Company.

The sole question which arose was, whether the Harlem Railroad Company, or the Hew Haven Railroad Company, were liable.

This exact question has not, I believe, arisen before in this country. It has arisen, however, in several cases in England; and among these, I refer especially to the following—Laughley v. Pointer, 5 B. & Cross. 560; Quarman v. Burnett, 6 M. & Wels. 697; Rapson v. Corbett, 9 M. & W. 709; Allen v. Haywood, 7 Ad. & Ell. S. 960. In LanigMey v. Povnter, the judges were divided, but in all the others they were unanimous, and the true rule deducible from all of them is undoubtedly that which is lucidly stated by Parke, Baron, in Quarman v. Burnett. In that case, the defendant was the owner of a carriage, and had hired from a third person a driver and pair of horses to draw the same for a short time, and during this time, the plaintiff’s horse, through the carelessness of the driver, was injured. The question was, whether the defendant, as owner of the carriage, was liable. The judges were all of opinion that he was not, and in delivering their judgment, Parke, Baron, said—“ Upon the principle, ‘ qwifaoit per alvam facit per ss,’ that person is undoubtedly liable who stands in the relation of master to the wrong-doer, who had selected him from the knowledge of, or belief in, his skill and care, who could remove him for misconduct, and whose orders the wrong-doer, as a servant, was bound to receive and obey.” It is evident that every word here said is applicable to the case before us.

The Harlem Bailroad Company was the owner of the horses which drew the car, and the driver was in their employ, paid by them, bound to receive and obey their orders, and liable to be dismissed by them at pleasure.

The fact of negligence has not been in dispute at all, but we have simply to determine which of the companies is liable, in damages, to the plaintiff. We think the proper parties are sued in this case.

The sole distinction between this and the English cases already cited is, thát the conductor, who came down in the Hew Haven- cars, might have had a supervision over the driver of the car; but it does not appear, that, in point of fact, this conductor gave any direction in relation to these matters at all. We have, therefore, the case of the Harlem Company being the owners of the horses, and the driver being their servant, and in their immediate employ. Hnder these circumstances, it appears to me that the Harlem Company were alone liable, and that the judgment rendered against them should be affirmed with costs.  