
    Mary Burns, as Administratrix, etc., Resp’t, v. Jacob Pethcal, App’lt.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed February 15, 1894.)
    
    Master and Servant— Co-servant.
    A servant is not liable for injuries to a co-servant caused by nonfeasance, but only for such as are caused by misfeasance.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial made on the minutes of the court.
    
      Edmund O' Connor, for appl’t; S. Mach Smith, for resp’t.
   Martin, J.

This action was to recover damages for negligently causing the death of William Burns, the plaintiff’s husband and intestate. In June, 1892, Edward A.Matthews was engaged in building a sewer in the city of Binghamton, under a contract between himself and the city. The sewer commenced at Leroy street running from thence northerly to within a short distance of Main street, and was something over 1,000 feet in length. Leroy street and Seminary avenue run parallel with Main. Murray street, through which the sewer was being constructed, runs at right angles with Main. The sewer was 27 feet deep at Leroy street, and as it proceeded northerly, towards Main, was of less depth; so that, at the point where the accident occurred, it was to be only about 16 feet deep. The accident occurred on the 24th of June, 1892. At that time, the sewer, up to a manhole which was about 6 feet south of where the accident occurred was about 16 feet deep. It had also been opened and partially excavated for a distance of from 25 to 50 feet north of the manhole, running from a depth of 8 or 10 feet, on a gradual ascent, to the surface of the ground at the northern extremity of the opening. On the day before the accident, Dorsey and Stone, two laborers, in Matthew’s employ, who were engaged in excavating at the point where the accident occurred, were directed by the defendant, who was in the employ of Matthews as his foreman, to stop work at that point, as a depth had been reached when it was proper to curb the opening. Curbing was usually put in at the depth ot eight or nine feet, as plank eight feet in length were, used for that purpose. Dorsey and Stone ceased work at that point, and went to work further north. Two other employes, Horton and Husted had been selected by the contractor to do whatever curbing was necessary on the sewer; and the defendant, immediately after direct-ting Dorsey and Stone to dig no deeper at that point, instructed them to curb the excavation at the place of the accident. As it rained in the afternoon, the men left the work, and did not return until the following morning. The rain commenced about an hour or an hour and one-half after the defendant had directed the men not to dig any deeper at that place. The plaintiff’s intestate had worked for Matthews on another sewer that was being constructed in the city; had been engaged for four or five years previous to his death in working on the streets of various cities; and the evidence tended to show that he was a man above the average intelgence of such laborers, and for that reason had been previously elected by an inspector of the city to do work in excavating that was especially difficult. He commenced work on the Murray street sewer for the first time the morning of the accident. The defendant was there before seven o’clock, went down into the sewer at the place where the accident occurred, examining the bank, and discovered nothing to indicate any danger or weakness in it. Another labore'r, who had worked at that point the day before, went into the sewer that morning at the same point to clean out the mud, and saw nothing to indicate danger or weakness in the walls of the ditch. After examining the sewer, and at about seven o’clock, the defendant set the men to work, taking a portion of them south,and telling the rest to go forward, without directing any person to work at any particular place. The defendant went south, and, after placing his men there, again directed Horton and Husted to put in the curbing at the place of the accident, to which they replied that they would go right along. The defendant then took his book and began taking the men’s time. The plaintiff’s intestate went north of the manhole, to the point where he was injured, without any direction from the defendant, or any other person, to work at that point; and there was sufficient room for him to work where the sewer was of less depth, and where he would not have been exposed to any danger. He had worked about 20 minutes when the west bank of the sewer caved in, and injured him so that he died the same day. The defendant had no knowledge at the time that Burns or any of the men were at work in the sewer at the point where this accident occurred. The eastern bank of the sewer stood firm and upright after the accident. Experts who were thoroughly acquainted with this kind of excavation testified that the east and west banks were, to .all appearances, alike; that nothing could be discovered that would disclose any reason why the caving of the west bank occurred; that it was regarded as entirely safe, in that kind of soil, to excavate to the depth of from 8 to 10 feet without curbing, and frequently excavations were made in such soil to the depth of 14 feet without curbing. The soil for a distance of 50 feet south was apparently the same as at the place of the accident and the men employed upon the work had been engaged in excavating there for two weeks without any evidence of weakness manifesting itself in either of the banks of the sewer, when of the depth of 8 or 10 feet. It was the duty and custom of Horton and Husted, who were employed to curb the sewer, to do so whenever any of the men requested it. The excavation was about 5 feet wide at the top, and narrower at the bottom. The soil at the place of the accident was, at the top, lightish gravel, coarse and hard; then followed a sort of loam or gravel; beneath that, a lightish sand; then gravel again. The stratum of sand was something over a foot in depth. The earth had been thrown out on the west bank, except a little sand that had been thrown out on the east. The plaintiffs evidence tended to show that the season had been a rainy one. This was contradicted. There was but little conflict in the evidence given on trial.

At the close of the plaintiff’s testimony, the defendant moved for a nonsuit, which was denied. At the conclusion of the evidence, the defendant again moved for a nonsuit, which was denied. To both of such rulings the defendant excepted. He then asked the court to direct the jury to render a verdict in favor of the defendant. This request was also denied, and the defendant excepted. The court submitted to the jury the question whether the defendant was negligent in not notifying Burns not to go to work at the particular point where he received his injuries, and in not warning him of the danger of working there. The defendant excepted to this portion of the charge. Ho question is raised on this appeal as to any of the rulings of the trial court in the admission or rejection of evidence. Hor is it claimed by the appellant that the damages aré excessive, if the plaintiff was entitled to recover in this action. The broad question presented for determination on ■ this appeal is whether the defendant was liable for the injury which resulted in the death of the plaintiff’s intestate. The only theory upon which the plaintiff sought to recover in the court below, or upon which she now seeks to sustain the recovery had, is that the defendant was guilty of negligence which caused the injury resulting in the death of her intestate. The only negligence charged by the plaintiff, or submitted to the jury by the court, as a basis for a recovery, was the omission of the defendant to direct the decedent not to go to work at the particular point where he received his injury, or in not warning him of the danger of working there. After a careful study of the evidence in this case, we find it quite difficult to discover any actionable negligence upon the part of the defendant in this respect. The evidence shows quite conclusively that the bank where this slide occurred was apparently firm, and that there was nothing to evince any weakness or imperfection in it, and that the defendant ■and other witnesses who had examined it before the injury, and afterwards, were unable to discover any indication of such weakness or danger. Moreover, the defendant had given no directions to the decedent to go to this particular place to work. It was a place he selected for himself, and that, too, while there were other places where the sewer was of a less depth, and where he might as well have worked, if he had chosen. Under this evidence, can it be said that it was sufficient „to justify the submission to the jury of the question of the defendant’s negligence? Or, if sufficient, was there any evidence showing that the plaintiff’s intestate was free from contributory negligence? If the danger of this accident could have been discovered by the defendant, by the exercise of reasonable care, why not by the decedent, if he exercised the same degree of care ? Is it probable from the evidence that the defendant, by reason of his experience, or for any other reason, could have discovered it, when the decedent could not? Can it be that the defendant was negligent in not discovering the-danger, and, at the same time, that the plaintiff has borne the-burden of showing that her intestate was free from contributory negligence when he did not discover it, or, if he did, remained at work there after such discovery? We do not, however, deem it necessary to determine either of these questions, as there is another ground upon which we think the judgment must be reversed.

As to the relation existing between the plaintiff’s intestate and the defendant, there can be no doubt. That they were both employes and servants of Mr. Matthews, the contractor, is established,, and not denied. Hence, the question is presented whether this-action could be maintained by the plaintiff to recover for the death of her intestate against the defendant, who was a co-employe. This question was raised by the defendant’s motion for a non-suit made at the close of the plaintiff’s evidence, and renewed after all the evidence in the case had been received. One of the grounds of the-motion was that there was no such relation existing between two-co-employes as authorized one to bring an action against the other on the ground of negligence. The English authorities on the question of the liability to third persons of a servant or agent for an act or omission performed or omitted by him while engaged in the business of his master are to the effect that the servant is liable for misfeasance, though the.act be in obedience to his master’s order, but that for mere non-feasance or omission of duty he is not liable to-third persons, but only to the master, who alone is answerable to-third persons for the servant’s neglect. Smith, Mast. & Serv. 415, and cases cited. We think it may be safely said that the English rule prevails generally in this and other states, notwithstanding the broad declarations of some judges and text writers to the effect that a servant is liable to third persons injured by his negligence, either alone or jointly with his master. Murray v. Usher, 117 N. Y. 543; 27 St. Rep. 928 ; Blackstock v. N. Y. & E. Railroad Co., 20 N. Y. 48, 50; Fort v. Whipple, 11 Hun, 586; Denny v. Manhattan Co., 2 Denio, 115, affirmed, 5 Denio, 639; Carey v. Rochereau, 16 Fed. 87 ; Delaney v. Rochereau, 34 La.Ann.1123; Reid v. Humber, 49 Ga.207; Henshaw v. Noble, 7 Ohio St. 226,231; Colvin v. Holbrook, 2 N.Y.126; Montgomery Co. Bank v. Albany City Bank,7 N.Y.459; Feltus v. Swan, 62 Miss. 415; Stephens v. Bacon, 7 N. J. Law, 1; Labadie v. Hawley,, 61 Tex. 177 ; Paper Co. v. Dean, 123 Mass. 267; Bell v. Josselyn, 3 Gray, 309, 311. The conflict in the authorities upon the question is more apparent than real. It has arisen, to a great extent, from a failure to observe clearly the distinction between misfeasance and nonfeasance, and from an omission to point out the fact that, while a servant is liable in the one case, Be is notin the other. Disregarding this distinction, some judges and authors have stated, in general terms, that a servant is liable for his own negligence to a person injured thereby. Sucfy a statement is inaccurate and misleading. Nonfeasance is the omission of an act which a person ought to do. Misfeasance is the improper doing of an act which a person might lawfully do. If the duty omitted by the agent or servant devolved upon him purely from his agency or employment, his omission is only of a duty he owes his principal or master, and the master alone is liable; while if the duty rested upon him independent of his agency or employment, then he is liable. That such is the doctrine in this state, and that, when applied to the case before us, it requires us to hold that this action cannot be maintained, is rendered quite manifest, we think, by an examination of the case of Murray v. Usher, supra. In that case an action was brought by the plaintiff, as administrator, to recover damages for alleged negligence causing the death of his intestate. The intestate was employed by the defendants Usher & Watkins as a day laborer in their sawmill. While so employed, a platform, upon which he was, fell, and he received injuries causing his death. The defendant Lewis was their superintendent, having general charge of the business under their supervision, they giving directions from time to time. Lewis was instructed to look after the necessary repairs, and it was his duty to inspect the platform from time to time so as to see it was kept in a safe condition. The plaintiff’s evidence tended to show that he negligently omitted to perform this duty. In delivering the opinion in that case, Judge Andrew said:

“The judgment could not be maintained against the defendant Lewis if the case presented an exception raising the question that his neglect to perform the duty imposed on by his employers to inspect and repair the platform from time to time, so as to keep it in a safe condition, did not render him liable for injury resulting to third persons from such neglect. Lewis and the plaintiff’s intestate were coservants of the owners of the mill; the former having the general charge and superintendence of the business under the supervision of the owners, who themselves gave directions from time to time. They instructed Lewis to look after the necessary repairs, and the evidence justified the inference that, in respect to the platform, he omitted to perform his duty. The general rule of respondeat superior charged the master with liability for the servant’s negligence in the master’s business causing injury to third persons. They may, in general, treat the acts of the servant as the acts of the master. But the agent or servant is himself liable, as well as the master, where the act producing the injury, although committed in the master’s business, is a direct trespass by the servant upon the person or property of another, or where he directs the tortious act. In such cases the fact that he is acting for another does not shield him from responsibility. The distinction is between misfeasance and nonfeasance. For the former, the servant is, in general, liable; for the latter, not. The servant, as between himself and his master, is bound to serve him "with fidelity, and to perform the duties committed to him. An omission to perform them may subject third persons to harm, and the master to damages. But the breach of the contract of service is a matter between the master and servant alone, and. the nonfeasance of the servant, causing injury to third persons, is not, in general, at least, a ground for a civil action against the servant in their favor. Lane v. Cotton, 12 Mod. 488 ; Perkins v. Smith, 1 Wils. 328; Bennett v. Bayes 5 Hurl. & N. 391; Smith, Mast. & Serv. 216, and cases cited.” ’

The Murray Case, in all its essential particulars, so closely resembles the case at bar as to make the doctrine of that case clearly applicable, and decisive of the question under consideration. We are of the opinion that, as the defendant in this action was charged only with nonfeasance, and not with misfeasance, and as the evidence disclosed that the defendant was guilty only of an omission of duty which devolved upon him, if at all, purely from his employment, and not in his individual character, he was not under the principle of the authorities cited, liable for the injury to the plaintiff’s intestate, and the court erred in refusing to grant the defendant’s motion for a nonsuit. Judgment and order reversed, and a new trial granted, with costs to abide the event.

All concur.  