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Opinion of the Court, per FOLGER, J.

band and wife to be witnesses for and against each other and in the behalf of either, in effect and so far dissolve the marriage relation, and is analogous to death or divorce.

But this position cannot be sustained. The reason for the decision in OConnor v. Majoribanks was that the policy of the common law must be upheld, which was to create and continue in marriage a unity of interest and affection by preventing the excitement and ill feelings it supposed likely to arise if one of the married gave testimony upon any matter to the detriment of the other. This policy was to be maintained not for the sake of the past. That was secure. Nor always because there was anything like a right peculiar to the parties, to have the mouths of each other always closed. For in a case where the husband was willing that the wife should be examined in an action against him, Lord HARDWICKE refused, because it was against the policy of the law to allow a woman to be a witness either for or against her husband. (Barker v. Dixie, cited Daniell's Ch. Pr., 4th Am. ed., p. 849. Also see Greenl. on Ev., sec. 340, and cases cited.)

It was to be maintained for the sake of the present and the future, that by an adherence to the rule for the public good, married folks might be assured of secrecy. Neither death nor divorce could abrogate the rule. So it continued impera: tive upon the courts and must after death or divorce be enforced for the sake of the public, though it could no longer help or harm the parties. But the statute in question discards the rule of the common law and abrogates it, and for us, save as to confidential communications, it no longer exists. Hust band and wife may now and for the future be witnesses as to all which passes between them not having that quality. Hence there remains no reason why courts should so rule as that husband and wife may in the present and future be assured that the ordinary communications of business are to be privit leged and confidential.

4th. The plaintiff makes the further point, that the act of 1867 is an ex post facto law, in violation of the Constitution of the United States, and void.

Opinion of the Court, per FOLGER, J.

The provision of the federal Constitution to which the plaintiff refers (that no State shall pass any ex post facto law), is not applicable to civil laws which affect private rights exclusively; but to penal and criminal laws, which impose purishments or forfeitures, for acts indifferent in themselves when committed, by a law subsequently passed. (See cases cited by JEWETT, J., in Burch v. Newberry, 10 N. Y., 374–91.)

And even if it be conceded (though it is not), that so much of this act as provides a rule of evidence in criminal cases is obnoxious to the constitutional provision, yet that is separable from and independent of the rest of the statute, and though it fall, the rest of the statute will stand.

5th. Nor is there anything in the case to show that the defendant, as is claimed by the plaintiff, held toward her in this matter the relation of a technical trustee. The complaint alleges, that he was her agent in the receipt into his hands of this money.

The answer avers that, as her husband, he received from her and had charge and custody thereof. The referee finds, that she voluntarily placed in his hands these moneys, and does not find that the transaction had anything in it of the nature of a trust. The testimony does not clash with this finding.

6th. This court cannot review the action of the court below in making an extra allowance to the defendant in addition to his taxable costs. It does not appear to have exceeded the maximum limit fixed by the Code.

The other points made in this conrt by the plaintiff are to the findings of the referee upon questions of fact. The testimony is sufficient to uphold the findings.

The judgment must be affirmed, with costs to the respondent.
All concur.
Judgment affirmed.

Statement of case.

49 521 120 325

SAMUEL LANING, Respondent, v. The New YORK CENTRAL

RAILROAD COMPANY, Appellant.

49 521 121 467

49 521 123 288

49 521 126 549

49 521 167 314

49 521 170 1471

The duty of the master to the servant, and the implied contract between

them, is to the effect that the master shall furnish proper, perfect and adequate machinery or other materials and appliances necessary for the proposed work, and also shall employ skillful and competent fellow-servants, or shall use due and reasonable care to that end. This duty or contract is to be affirmatively and positively fulfilled and performed. It is not enough that the master selects one or more general agents of approved skill and fitness, and confers upon them the power of selecting, purchasing or hiring. If the general agent carelessly places by the side of the servant another unskilled and incompetent, and damage results to the servant in consequence, the master is liable; and this is so, whether the incompetency or want of skill of the fellow-servant existed when he was hired, or has come upon him since, and he has been continued in service with notice or knowledge, or the means of knowledge, upon the i part of the master, of the defect. It is the duty of the master to his servant: to discharge from his service, upon notice thereof, any other servant, who, from any cause, has ceased to be competent and skillful. (The case of

Wright v. N. Y. C. R. R. Co., 25 N. Y., 562, limited and explained.) Where the servant has full and equal knowledge with the master that the

machinery or materials employed are defective, or that the fellow-servant
is incompetent, and he remains in the service, this may constitute con-
tributory negligence; but if it appears that the master has promised to
amend the defect, or other like inducement to remain has been held out
to the servant, the mere fact of his continuing in the employment does
not of itself, as matter of law, exonerate the master from liability, but the
question of contributory negligence is one of fact for the jury. (ALLEN,

J., dissenting.)
Defendant employed a competent and skillful agent, whose duty it was to

employ men for a particular department of its service. The agent hired
one W. as foreman, who was competent at the time of employment, but
subsequently acquired habits of intoxication which rendered him at
times incompetent. This was known both to plaintiff and the agent.
Evidence was given, however, tending to show that the agent, upon com-
plaint of plaintiff, stated to the latter, that if W. did not do better he
would have to discharge him. W., while intoxicated, directed two
incompetent and unskillful men to erect a scaffold upon which plaintiff
was directed to work. Defendant had furnished sufficient, good and
proper materials wherewith to build the scaffold, but, from the unskill-
fulness and incompetency of the men employed in the construction, it
was so defectively built that it fell while plaintiff was upon it and he
SICKELS—VOL. IV.

66

Statement of case.

was injured. The defect was mainly in using improper and insufficient materials. In an action to recover for the injury,- Held (ALLEN, J., dissenting): 1st. That defendant was chargeable with the negligence of its agent in retaining W. in its employ after he had knowledge of his incompetency. 2d. That it was a question of fact for the jury, whether under the circumstances the fact of plaintiff's remaining in defendant's employ with knowledge of the incompetency of W., was

contributory negligence upon his part. Also, held, that it was competent to prove, by the declarations of the agent

to plaintiff, knowledge upon the part of the former of the incompetency

of W. This court is not authorized to review a judgment and reverse it for an

alleged error which does not appear upon the record, and is only shown by expressions in the opinion of the court below.

(Argued December 20, 1871 ; decided May 28, 1872.)

APPEAL from order of the General Term of the Supreme Court in the third judicial department, affirming an order of Special Term denying a motion for new trial and refusing to set aside verdict in favor of plaintiff.

This action was brought to recover for injuries received by plaintiff while in defendant's employ, through the alleged negligence of the latter.

Plaintiff was a carpenter in the employ of defendant. The facts appear sufficiently in the opinion.

Matthew Hale and Samuel Hand for the appellant. A master is not liable to one servant for injuries occasioned by the negligence of another. (Farwell v. The Boston and Worcester R. R. Co., 4 Met., 49; Priestly v. Fowler, 3 M. & W., 1; Brown v. Maxwell, 6 Hill, 592; Wright v. N. Y. C. R. R. Co., 25 N. Y., 562; Wilson v. Merry, L. R., 1 Scotch App., 326; Warner v. Erie Railway Co., 39 N. Y., 468.) This rule applies to a railroad corporation as well as to a person. (Hard v. Vt. Central R. R. Co., 32 Vt., 473; Warner v. Erie Railway Co., 39 N. Y., 468; Wilson v. Merry, supra; Wright v. N. Y. C. R. R. Co., supra; Gallagher v. Piper, 16 C. B. [N. S.], 669.) The rule includes negligence of a servant in employing workmen for a given work. (Wright v. N. Y. C. R. R. Co., 25 N. Y.,

Statement of case.

572.) A superior is liable only for his own negligence; he cannot warrant the competency of his servants. (Tarrant v. Webb, 5 L. J. [N. S.] Cr. P., 263; 89 Eng. C. L., 795; Warner v. Erie Railway Co., 39 N. Y., 468; Wright v. N. Y. C. R. R. Co., 25 id., 566, 567.) There was no negligence on the part of defendant in failing to furnish suitable means and materials. (Wigmore v. Jay, 5 Exch., 352; Feltham v. England, L. R., 2 Q. B., 33; Wilson v. Merry, L. R., 1 Scotch App., 326.) Knowledge by plaintiff of the incompetency of his fellow-laborers, or the insufficiency or defectiveness of the machinery, was a bar to his recovery. (Priestly v. Fowler, 3 M. & W., 7; 25 N. Y., 566, 567, and cases cited; Loonam, v. Brockway, 3 Rob., 74; Davis v. Det. and Mil. R. R. Co., 20 Mich., 105.) The court erred in admitting Coleby's declarations in regard to Westman. (Luby v. H. R. R. R. Co., 17 N. Y., 131, 133.) The court below erred in deciding it had no power to reduce the damages without granting a new trial. (Russell v. Cown, 20 N. Y., 81; Murray v. H. R. R. R. Co., 47 Barb., 96; 3 Graham and Wat. on New Trials, 1162, 1165; Hodges v. Hodges, 5 Met., 205.)

A. J. Parker for the respondent. The retaining of Westman in defendant's employ, after his incompetency was known to Coleby, was such negligence as rendered defendant liable for the injuries resulting therefrom. (Wright v. N. Y. C. R. R. Co., 25 N. Y., 565; Snow v. Hous. R. R. Co., 8 Allen, 441; Myers v. Smith, 28 Verm., 59; Fifield v. Northern R. R. Co., 42 N. H., 225; Hayden v. Smithfield Manufacturing Co., 29 Conn., 548; Buzzele v. Laconia Co., 48 Maine, 113; Ryan v. Fowler, 24 N. Y., 410; Keegan v. Western R. R., 4 Selden, 175; Connolly v. Patton, 41 Barb., 366; Patterson v. Wallace, 28 Eng. Com. L. R., 50; Warner v. E. R. Co., 39 N. Y., 468.) Knowledge of and notice to Coleby of Westman's intemperance was notice to the company. (Fulton Bank v. N. Y. and Sharon Canal Co., 4 Paige, 137; Ingalls v. Morgan, 10 N. Y., 104; Snow v. Hous. R. R. Co., 8 Allen, 447.) The neglect or want of

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