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Smith v. N. Y. and Harlem R. R. Co.

When the plaintiff rested the defendants moved for a dismissal of the complaint, on the ground that the accident was occasioned by the negligence of a fellow-servant engaged in the same business, and was one of the risks assumed by the deceased by virtue of his employment. The motion was denied, and the defendants excepted.

The Judge charged that defendants were liable for the carelessness of the switch-tender employed by them, supposing no negligence on the part of the deceased, notwithstanding he was an employee of the New Haven Company; and to this there was an exception. He also charged that it was negligence on the part of the defendants not to adopt a useful improvement in the construction of the switch, by which improvement the danger of accident would be materially reduced, if the improvement was known to them, and they had it in their power to apply it; and for which negligence they would be liable, provided the accident was caused by such omission on their part, the deceased himself not being guilty of negligence. The proposition was stated with this qualification, however, to wit., that the improvement had been proved, and found to be valuable as a means of promoting safety, and was known to the defendants, and was within their power so as to be reasonably practicable. To this charge, also, the defendants excepted.

Two questions were then left to the jury.

1. Whether the death was caused by the negligence of the switch-tender, without any negligence on the part of the deceased concurring to cause the result?

2. Whether negligence, on the part of the defendants, in not providing a proper switch also caused the accident, without any negligence on the part of the deceased?

Both which questions were answered affirmatively by the jury, and a general exception was taken to the charge.

The jury found a verdict for the plaintiff for $5000, the full amount allowed by the statute.

We find no fault with the finding of the jury on the questions submitted to them, as the evidence clearly justifies it in both particulars, and the only questions are, whether they were properly instructed as to the law, and whether the court erred in refusing a nonsuit?

Smith v. N. Y. and Harlem R. R. Co.

The motion for a nonsuit was made on the ground that the switchman and the engineer, (the deceased,) though employed the one by the Harlem and the other by the New Haven Company, were to be considered, in consequence of the peculiar arrangement between the companies for the use of the same track in common, as engaged in a common service, and that the defendants were, therefore, not responsible, the death being caused by the negligence of a fellow-servant. Had the relation between the two been such, there is no doubt, assuming that the disaster was wholly attributable to the negligence of the switch-tender, without any fault on the part of the deceased, that such would be the rule. (Coon. v. Syrac. and New Haven Railroad Co., 1 Seld. 492.)

But it would be difficult to maintain this position, and the Judge who tried the cause, clearly took a different view of the case, or he would not have instructed the jury that the defendants were responsible for the negligence of the switch-tender, if the deceased himself was not guilty of negligence.

In this, we think, he was right. If the New Haven Company were running their cars on the defendant's road, by no higher authority than the mere permission of the latter, still the defendants would be liable to a passenger in, or to a person employed upon, said cars, for any negligence on their part, or on the part of their employees, by which injury should be caused. The act of March 29, 1848, authorizes the New Haven Company to run their cars upon this section of the defendant's road, upon such terms as may be agreed upon between the two companies. What these are the court is not informed, no evidence thereof having been given, and it is not reasonable to suppose that they are of such a character as to make the servants of the two companies, while on this part of the route, agents or employees in a common sense.

But if this question were doubtful, which we do not consider it, or were even clearly the other way, still, the verdict must be sustained under the finding on the second question submitted to the jury, since the rule exempting the principal from liability in such a case has this qualification, that the principal himself is not in fault.

Judge Ruggles in delivering the opinion of the Court of Appeals in Keegan v. The Western Railroad Co., (4 Seld. 175,) which was an action by a fireman, in the employ of the company,

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for damages occasioned by a defective boiler, thus clearly defines the rules: "The cases in which it has been held that a principal is not liable to one agent or servant, for an injury sustained by him in consequence of the misfeasance or negligence of another agent or servant of the same principal, while engaged in the same general business, are applicable only where the injury complained of happened without any actual fault or misconduct of the principal, either in the act which caused the injury or in the selection and employment of the agent by whose fault it did happen. Whenever the injury results from the actual negligence or misfeasance of the principal, he is liable as well in the case of one of his servants as in any other."

The Judge instructed the jury, in substance, that it was neglect in the defendants not to adopt the improvement of the frog and guard rail in the construction of their switches, if the jury should find it was known to the defendants, and they had it in their power to apply it, and that by it the danger of accident would be materially reduced; and in this we think he was clearly right. No rule could be more reasonable, and nothing less should be required of the railroad company; the safety of passengers and employees requires it.

In the case of Hegeman v. The Western R. R. Co., (16 Barb. S. C. R. 353; 3 Kernan, 1,) the court held, that it was negligence in the defendants not to have adopted a safety-beam in connection with the axles of the cars, an invention well known and in extensive use, and by which the danger of accident was greatly diminished. The rule does not, as the Judge in the case at bar instructed the jury, "require the defendants to adopt or apply every new invention, nor any invention, the utility of which is in doubt; the obligation to use a new invention only arises when such improvement has been proved, and found to be valuable as a means of promoting safety, and that is known to the defendants, and the improvement is within their power, so as to be reasonably practicable."

The rule, as thus explained and qualified, is free from every objection, and of great practical utility and importance, and one which the courts should rigidly adhere to.

The jury have found that the accident in question was attributable to this cause, as well as to the neglect of the switch-tender,

Beavers v. Lane.

and we think this must settle the question of the defendants' liability.

It may be proper to add that the position taken by the defendants' counsel, that the deceased, knowing the condition of the road, took the risk of it, is, we think, unsound. A servant may be held to take the risk of the common and usual hazards of his employment, but certainly not of those hazards which are induced or aggravated by the omission of his employer to use precautions and means, the very existence of which may not be in the servant's knowledge, and which the nature of his service does not require him to know, but which it is the duty of the employer, from his peculiar position, both to know and apply; and much less can he be said to take the risk of the omissions and negligence of those who are not his employers, but who, by the relation in which they stand to his employers, are bound, in respect to the latter, and all employed by them, to the exercise of the like rule of prudence.

The judgment must be affirmed, with costs.

GEORGE W. BEAVERS v. NEHEMIAH B. LANE, and others.

It is settled law, that when the owner of personal property makes an unconditional delivery to his vendee, with the intent to transfer the title, a subsequent bond fide purchaser from such vendee acquires a valid title, although the owner was induced to sell by the fraud of his vendee,

It is also settled, that even when the owner qualifies his delivery by annexing as a condition, that immediate payment shall be made, still a bond fide purchaser, without notice of the condition, acquires a valid title.

But these rules are not applicable when it appears that the contract of sale to the subsequent purchaser was so far executory, that the thing sold had not been delivered, nor any portion of the price paid, so that, in the event of a recovery by the owner, such purchaser will sustain no damage beyond the possible loss of anticipated profits.

Although the contract, under such circumstances, may pass a valid title as between buyer and seller, it would not be available as a defence against the paramount title of the original owner.

It may be safely laid down as law, that no person, as against the true owner, is to be deemed a bond fide purchaser from the first vendee, when it appears that he had neither advanced money nor property, nor incurred liabilities upon the

Beavers v. Lane.

faith of such vendee's apparent title. He is not a bona fide purchaser when a recovery by the owner would leave him in the same condition as if no contract of purchase had been made by him.

It appearing to the court that such were the facts in relation to the purchase made by the defendants, held, that their situation in respect to the plaintiff, the original owner of the goods in controversy, was exactly the same as that of his vendee, and, consequently, that if the sale to him had been induced by his fraud, they had no defence to the action.

Held, further, that upon the evidence given on the trial, and the known rules of law applicable thereto, the questions, whether the sale to the vendor of the defendants had not been obtained by fraud, and whether the delivery of the property by the plaintiff was not conditional, so that the price being unpaid, no title passed, ought to have been submitted to the jury.

Held, therefore, that the complaint ought not to have been dismissed, and that the motion for a new trial must be granted.

(Before DUER, SLOSSON, and WOODRUFF, J.J.)

November 7; December 27, 1856.

MOTION on the part of the plaintiff to set aside a nonsuit, and for a new trial.

The action was brought for the delivery of the possession of thirty-six hundred bushels of oats, and the issues raised by the pleadings were tried before Oakley, Ch. J., and a jury, in November, 1854. When the testimony on the part of the plaintiffs was closed, the counsel for the defendants moved for a nonsuit, the court granted the motion, and the counsel for the plaintiff excepted to the decision.

A motion to set aside the nonsuit, and for a new trial, afterwards made at a Special Term by an order of the court founded on the consent of the parties, was directed to be heard at a General Term.

That the opinion of the court may be properly understood, it will be necessary to set forth the pleadings and the evidence given on the trial.

The complaint alleges that the plaintiff was, at and before the commencement of the action, the owner and lawfully entitled to the possession; that on or about the 21st day of April, 1854, the defendants wrongfully took and carried away the said property from the plaintiff, and wrongfully detain the same from him; that he has demanded the same from the defendants, and that they have refused to deliver the same to him.

The answer of the defendants denies the plaintiff's title, and

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