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Opinion of the Court, per FOLGER, J.

unsafe machinery, implements, facilities or materials for the use or labor of the servant. (Id.)

And to charge a master with liability to one servant for an injury on the ground that he has selected and employed another unskillful and incompetent servant, it must appear that the injury complained of was the result of the want of skill and competency of the other. (25 N. Y., supra.)

So far, we doubt not that the learned counsel for the appellant and respondent respectively would agree. But just here arise points of difference.

The appellant claims, as we understand its position to be, that it acts through a board of directors, and acts immediately in no other way; and that when the board of directors, itself composed of discreet, prudent and honorable men, has selected and employed skillful and competent general servants, agents or superintendents, it has done its whole duty to the servants of lower rank, who shall in turn be selected and employed by those of general powers and duties. The negligence, it is claimed, of these general servants, agents and superintendents, is not the negligence of the corporate body, nor of the board of directors through which in the first instance the corporate body acts; but that it is, so far as a servant of the corporate body in any rank is concerned, the negligence of a fellow-servant, for which the master is not liable. And it is claimed that the rule we have above extracted (to wit : that the negligence, want of care and prudence, act or misconduct of the master, may be shown in the selection and employment of incompetent and unfit agents and servants) is only applicable when such selection or employment is by the master in person, and not through a general or superior agent; and that such rule is to be governed by the other rule extracted above and which the defendant claims to be), that the master is liable to a servant only for his 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, indeed, taking another rule above given, in the full scope of the general language in

SICKELS—Vol. IV. 67

Opinion of the Court, per FOLGER, J.

which it is laid down, unrestricted by the considerations and the circumstances of cases which must always affect and limit most general rules in some degree, it is to be confessed that it seems that they have literal show of authority for their position. It is said that if two servants are in the employ of the same master, engaged in the same common enterprise, and performing duties and services for the same general purposes, the master is not liable. (25 N. Y., supra, p. 565.) Now, it is apparent that the agent who selects a machine to be used in the business of the master, speaking generally, is in the employment of the same master. He is engaged in the same common enterprise, and performing a duty and a service for the same general purposes of the master. And so of the agent who selects and hires men to act in that business. It is necessary for that business, to aid the common enterprise, and to advance those general purposes, that machines should be had and men hired, and the agent who attends thereto performs a service to that end. The position has also in its favor a judicial assertion more specific than this. In Wright v. N. Y. C. R. R. (supra), the learned judge who delivered the opinion, after intimating (p. 571) that it is at least debatable whether the defendant in that case was responsible to the other of its servants for the proper performance of the delegated power in the selection and hiring of engineers by Upton, the agent of the defendant, who was charged with that duty, goes on to say: That in the exercise of power there in question (which was to select one from a body of engineers to run an engine on a particular trip), Upton was acting as the servant of the company, in concert with every other person having any duty to perform, in respect to that particular purpose; and after saying (p. 572) that the cases cited show that for the negligence of a foreman or a superintendent the master is no more liable than for the negligence of any other servant, he remarks that it can make no difference in principle that the negligence is in the selection of the materials, the implements or the agents for the performance of a given work, instead of directing the time, mode or manner of doing the work.

Opinion of the Court, per FOLGER, J.

ness."

And this proposition has more significance, from the fact that the decision of this court in the case, reversed the judgment of the Supreme Court therein, in giving which the court held: “That the power to employ servants may be delegated by the principal, and this must generally be so when the principal is a corporation. When the principal so acts by agent, he will, upon general principles, be liable for the negligence of the agent. This agent will not be regarded simply as a fellow-servant of those whom he employs in the general busi

.” (Wright v. N. Y. C. R. R., 28 Barb., 80, 86.) If we adopt the statement in 25 N. Y., and apply it to the facts of the case at bar, we must say that the defendant is no more liable for the negligence of Coleby in continuing the employment of Westman, though he was incompetent from drink, than for the negligence of any other servant; nor any more liable for the negligence of Westman, in directing to the putting up of this scaffold of two incompetent men, though that negligence was the result of his own temporary incompetency, his liability to recurrence whereof was known to Coleby, the agent of the defendant to employ and dismiss servants. And upon this the learned counsel for the appellant relies to sustain the position taken by it. They cite to us no other case which so holds. Warner v. Erie Railway (39 N. Y., supra) was the case of a structure originally sufficient, but rendered unsafe by gradual decay, which decay, under the careful inspection of competent agents, in modes deemed sufficient by skillful and practical men, had not been discovered. Wilson v. Merry (L. R. [1 Scotch App.), 326) was the case of a negligent act of a competent servant. Gallagher v. Piper (16 C. B. N. S., 692) was also a case of negligence, not of incompetence. Hard v. Vt. Cent. R. R. (32 Vt., 473) was the same.

While the reports of this State seem to be meager in authority in this particular point, the question has been somewhat discussed and decided in other States. (See Gilman v. East R. R., 13 Allen, 433; Noyes v. Smith, 28 Vt., 59; llard v. Vt. and Can. R. R., supra; Frazier v. Penn. R.

Opinion of the Court, per FOLGER, J.

R. Co., 38 Penn. St., 104; Walker v. Bolling, 22 Ala., 294.)

It is well maintained, in these cases, that if the position of the appellant is upheld in its full extent, it will, in most cases, relieve a corporate body, and any employer who acts through general superintendents, from liability to servants for injuries occasioned by imperfect and defective machinery, by unsafe mechanical means and appliances of any kind, and by all incompetent and unskillful sub-agents furnished without due care. And this statement of the learned judge in Wright v. New York Central Railroad was not necessary to the disposition of the case. Sufficient reasons for the judgment of the court had already been found in the fact that the injury complained of did not result from the incompetency or unskillfulness of the fellow-servant, whose act, it was claimed, had occasioned it, and, perhaps, in the fact that the plaintiff knew the perils of the service and continued in it, voluntarily assuming the risks; and in the further fact that the servant complained of was competent, and that there was no negligence in selecting him for the work. We may decline, then, to be bound by it, so far as this question is concerned. We should not hold as there enunciated, unless it is the clear result of former decisions. The duty of the master to the servant, as it is sometimes put (25 N. Y., 556), or his implied contract with his servant, as it is differently intimated (Farwell v. B. and W. R. R., 4 Metc., 49), leads to another conclusion. That duty or contract is to the result that the servant shall be under no risks from imperfect or inadequate machinery, or other material means and appliances, or from unskillful or incompetent fellow-servants of any grade. It is a duty or contract to be affirmatively and positively fulfilled and performed. And there is not a performance of it until there has been placed for the servant's use perfect and adequate physical means, and for his helpmeets fit and competent fellow-servants; or due care used to that end. That some general agent, clothed with the power, and charged with the duty to make performance for the master, has not done his duty at all, or has not done it well,

Opinion of the Court, per FOLGER, J.

neither shows a performance by the master, nor excuses the master's non-performance. It is for the master to do, by himself or by some other. When it is done, then and not until then his duty is met or his contract kept. The servant then takes the risk of the negligence, recklessness or misconduct ! of his fellow in the use of the material and implements furnished, and of their failure from latent defects not revealed by practical tests, and from deterioration by the usual wear and tear. It is not enough to satisfy the affirmative duty or contract of the master that he selects one, or more than one general agent of approved skill and fitness. If the general agent goes forward and carelessly places by the side of a servant another unskilled and incompetent, the duty of the master has not yet been met, his contract is yet unperformed. Corporate bodies must, of the necessity of their being, act through agents, and in the large enterprises and business pursuits of the times, the necessity is almost as stringent upon very many other employers. But they may not avoid the duty which they owe to their servants of furnishing them with sound mechanical contrivances, and accompanying them with competent fellows, by conferring upon superior servants the duty of selecting and purchasing or hiring.

The duty being that of the principals, and theirs the contract; it is theirs to fulfill and perform, and if it is not done, or insufficiently done, the failure to do is theirs. As is well said, “ if a master's personal knowledge of defects be necessary to his liability, the more he neglects his business and abandons it to others, the less will he be liable.” (BYLES, J., in Holmes v. Clark, infra.) We hold, therefore, that a master is liable to his servant for an injury caused by the incompetency or want of skill of a fellow-servant, whether it existed when the fellow-servant was hired, or has come upon him since the hiring, the fellow-servant having been in the first instance hired, or afterward continued in service, with notice or knowledge or the means of knowledge of this lack. The duty of the master to his servant is to use reasonable care to provide and employ none but competent and skillful

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