Opinion of the Court, per FOLGER, J. skill of the master's general agent employed in procuring help and machinery is the act of the master. (Gilman v. E. R. R. Co., 10 Allen, 230; Hard v. Verm. Central R. R. Co., 32 Verm. Rep., 473; Ryan v. Fowler, 24 N. Y., 410; Wiggett v. Fox, 36 Eng. L. and Eq. R., 486; Myer v. Smith, 28 Verm. Rep., 59; 5 Am. Law Reg. [N. S.], 274; Warner v. Erie R. Co., 39 N. Y., 478; Louisville Co. v. Collins, 5 Am. Law Reg. [N. S.], 265; Little Miami R. R. Co. v. Stevens, 20 Ohio, 415; Hoben v. Burlington Co., 20 Iowa, 562; C. C. & C. R. R. Co. v. Keary, 3 Ohio [N. S.], 201; Redfield on Railways, 386, 390.) FOLGER, J. Viewing the case as the jury would have been warranted in doing, it comes in the main to this. The plaintiff with others, he and they being fellow-servants of the defendant, were engaged in the course of their ordinary service, in the performance of a work for the defendant, to do which it was necessary that there should be put up a scaffold for them to stand upon. One Westman, the foreman of these men, directed one Churchill and another to put up the scaffold. There is some dispute in the testimony as to who the other was; but the jury might properly have found that one Foreman was the person who, by direction of Westman, helped Churchill. Churchill had been in the employ of the defendant for some months, engaged in different kinds of subordinate service. It is not shown for what particular service, if for any particular service, he was hired by Coleby, who was the agent of the defendant to hire these men. Nor was it shown that he was not skillful and competent to do that for which he was hired, and in fact to do all that was put upon him to do before the task of building this scaffold. Foreman is not shown to have been hired by the defendant. Coleby testified that he did not know him and that his name was not upon the pay-rolls of the defendant. The plaintiff testified that the day of the accident was the first day on which he had seen him there. Churchill could not say that Foreman had worked there after Opinion of the Court, per FOLGER, J. the accident; but there was testimony that he was at work on that day, with Churchill, in putting up this scaffold. The jury could rightly find, or infer from what was testified, that Foreman was in fact at work on that day in the defendant's business and that, by the direction of Westman, Foreman and Churchill put up this scaffold. (See Althorf v. Wolfe, 22 N. Y., 355.) The scaffold fell with some of the men upon it, and the plaintiff was seriously injured by the fall, he being among those upon it by direction of Westman. The scaffold fell from a defect in its construction; this defect was mainly from building it with timbers too small in size, and too poor in quality, being cross-grained and hence weak. There was no lack of good and proper material, which could have been as readily got at. Indeed, there was an abundant supply of proper material; but the insufficient timbers which were used were taken from the mass by Churchill and Foreman, either from a lack of skill to select better, or from a lack of faculty to perceive the necessity of using stronger, or from a lack of strength to handle and lift larger and heavier timbers, or from these three causes combined. It was, at all events, from the unskillfulnes and incompetency of Churchill and Foreman for this particular work, that the scaffold was so unsafely built that it fell. The plaintiff knew that the scaffold was built by some of those there engaged at work. He did not know who were the individuals that built it, nor the manner in which it was built, not having seen it while they were building it, nor until by the direction of the foreman he stepped upon it. Westman the foreman, was a competent man in skill and natural judgment. It does not appear that, at the time he was hired for the defendant, he had acquired any habit which detracted from his competency. At the time of this work, however, he was not temperate in strong drink. The testimony tended to show that he was drunk on the day, and near the time of the accident. The testimony does not show directly, though it is an inference which a jury might make Opinion of the Court, per FOLGER, J. fairly, that his condition in that respect was a cause of the injury to the plaintiff; for they might well infer that, if his faculties had been without confusion from strong drink, he would not have put these lads, deficient in judgment and strength, to a work requiring discretion and power, or would have inspected the result of their work before using it. The plaintiff well knew the habits of Westman in this particular, and knew that he was drunk on this day, not only at the time of the accident, but before, and that he had been drunk on days before that. The testimony tended to show that Coleby had knowledge of Westman's habits. The jury might so have found. Such being the fact, if the plaintiff has ground of action against the defendant for this injury and the resultant damage, it must be found in the want of skill, and in the incompetency of Churchill and Foreman and in the use of them by Westman for the work of erecting the scaffold. Indeed, it may be stated yet more narrowly, and it must be found alone, in the use of these two young men for this work by Westman. For it is not shown that Churchill was hired for this kind of work, or for work of this importance to others. The employment of him was not like that of one to act as an engineer for the peculiar duty of managing an engine, or as a switchman to attend to a switch, but it was general. The proof shows that the labor he performed was miscellaneous, not altogether that of a mechanic; and the particular work to which he went was not because he was hired for that specifically, but because he was set at that by his immediate superior. From the time of his hiring until this occurrence, it does not appear that he was incompetent to do that for which he was employed and at which he was put. It does not appear that Foreman was hired at all by the defendant, or by Coleby their agent to hire men. Coleby, who hired the men, and had hired Churchill, neither hired him for this purpose, nor did he set him at this work; on the contrary, Coleby testified that this scaffold was built without his knowledge, and that he had instructed Westman, the plaintiff, and the others who Opinion of the Court, per FOLGER, J. were to risk themselves upon the scaffold, to build the first two, and showed them where they should get the lumber for the purpose, and in this he is not contradicted. It is not possible then to contend that the defendant was negligent in the fact of taking generally into its employment Churchill, or suffering Foreman to labor without especial hiring, though for some kinds of service they were without skill and were incompetent, so long as they should not be put at that which they were not competent and skillful to do. The negligence was in putting them to the service of erecting this scaffold. It begins there and dates no farther back. And it is upon the basis of that negligence that the defendant must be found liable, if liable at all. And conceding that there was negligence in directing these lads to the work of putting up this scaffold, that negligence cannot be traced further back than to Westman. For he, thus put in charge of this gang of men, to supervise and direct them in this work, was supplied by Coleby his immediate superior, with other competent men in numbers enough, and with fit material. It would not have been Coleby's negligence if Westman had not used the fit material. It was not Coleby's negligence that Westman did not use the competent men. With the reservation however, from these last two statements, of any negligence of Coleby, in continuing in the employ of the defendant a man of Westman's habits after notice or knowledge thereof. Nor, with the same reservation, was it the negligence of the defendant, or of any of its agents, other than Westman. We have thus presented to us this case. One servant of a common master is injured by the negligent act of a fellowservant of a rank one step higher. The act of negligence in the fellow-servant is the result of an incompetency which did not exist when he entered the employment of the master. It is not permanent, but occasional, and produced by evil habits, the existence of which was known before and at the time of the injury, both to the servant injured and to the hiring agent of the master. 1 Opinion of the Court, per FOLGER, J. Most of the principles of law which are to be applied to these facts, and to determine the relative rights of the servant injured and the master, are settled in this State, and must be conceded. A master is not liable to those in his employ for injuries resulting from the negligence, carelessness or misconduct of a fellow-servant engaged in the same general business. Nor is the liability of the master enlarged when the servant who has sustained an injury is of a grade of the service inferior to that of the servant or agent whose negligence, carelessness or misconduct has caused the injury, if the services of each, in his particular labor, are directed to the same general end. And though the inferior in grade is subject to the control and directions of the superior whose act or omission has caused the injury, the rule is the same. Nor is it necessary, to exempt the master from liability, that the sufferer and the one who causes the injury should be at the time engaged in the same particular work. If they are in the employment of the same master, engaged in the same common work and performing duties and services for the same general purposes, the master is not liable. These rules seem to have been laid down with care, after due consideration, to be sustained by reason, to have been assented to by more than a bare majority of this court, in at least two instances, at some interval of time, and should be adhered to in any case the facts of which bring it within the purview of them. (See Wright v. N. Y. C. R. R., 25 N. Y., 562; Warner v. Erie Railway, 39 N. Y., 468; and the cases cited in them.) The cases cited hold, further, that the master is liable to a servant for his (the master's) own personal negligence, or want of care and prudence, and for his own personal act or misconduct occasioning injury and damage to the servant. And such negligence, want of care and prudence, act or misconduct, may be shown in the mismanagement of the master's affairs in the selection and employment of incompetent and unfit agents and servants, or the furnishing of improper and |