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Opinion of the Court, per FOLGER, J.

servants, and to discharge from his service on notice thereof any who fail to continue such.

And applying this rule to the case in hand, we are of the opinion that the defendant was negligent towards the plaintiff, in retaining Westman in its service, after his habit of drinking to drunkenness was known to Coleby, its general agent for hiring and discharging men of the class of Westman.

Here, however, comes in another rule which affects the relations of master and servant. A servant has no cause of action against a master for an injury resulting from the negligence of the master, where the servant's negligence contributed to the taking place of the injury. And where a servant knows as fully as the master of the existence of that which is at last the producing cause of the injury, and continues, without promise of amendment of the defect, of his own accord in the master's employ, exposed to the effects when they shall come, it may constitute contributory negligence on his part to remain thereafter in the service. (Assop v. Yates, 2 H. & N., 768; Ilayden v. S. Manuf'g Co., 29 Conn., 548; Skip v. E. C. Railway Co., 24 Law and Eq., 396; The Mad. Riv. & L. E. R. R. Co. v. Barber, 5 Ohio St., 541; and see Bassett v. The Nor. & Wor. R. R. Co., 9 Law Rep., 551.)

The learned counsel for the respondent cites Snow v Hous. R. R. (8 Allen 441), as a contradiction of the principle maintained in these cases. But an examination of it shows that the plaintiff therein was not a servant of the defendant therein. He was in the employ of the Western Railroad Company, which company, by contract with the defendant there, used its road and track for making up trains, etc., at the place where the plaintiff was injured. And the learned chief justice, in delivering the opinion of the court, says: “It does not appear that he (the plaintiff) was employed in any duty or service for or on behalf of the defendants; on the contrary, it is stated that he was in the employment of another corporation.

On these facts it is difficult to see how the doctrine applicable to a claim for damages occasioned by the carelessness of a fellow-servant against a

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Opinion of the Court, per FOLGER, J.

common employer can have any bearing on the rights of the parties to this action."

The court, in that case, recognizes the existence of the rule now under notice, but concludes that it does not apply to the facts of that case. (See page 450 of the report.) In Gilman v. East. R. R. Co. (supra), cited by the learned counsel, the question now under consideration was not passed upon, and was expressly ignored as not raised on the trial. (See page 445 of the report.) We have read the other cases cited by the learned counsel on this point, and apprehend that no ruling will be found in them different from that above expressed by us. While all of them hold that it is the duty of the master to provide safe and sufficient machinery and appliances, and skilled and competent agents and servants, none of them assert that if the servant, who knows as well as the master of a lack in these respects, is injured thereby, he is not open to the imputation of a contributory negligence; and the reason why is simple but sufficient. It is at his option ordinarily, to accept or to remain in the service or to leave it; and if he remains without promise of a change or other like inducement, it is for the jury to say whether or not he voluntarily assumes the risks of defective machinery and of incompetent servants, whereof he has full and equal knowledge.

The case does not show but that Westman, when first he came into the employ of the defendant, was competent in all respects. His incompetence and unfitness subsequently occurring were temporary and occasional, the result of evil habit. They had come to the knowledge of Coleby, who had power to act, so that it was negligent for the defendant to retain Westman in its employ. But it is apparent that the plaintiff knew as well, and indeed far better than any one else, the habits of Westman, and his particular condition on that day. The strength of the affirmative testimony on both of these points is from the plaintiff's mouth. The plaintiff knew that the building of this scaffold was going on. He knew that neither of the persons who had built the other two

Opinion of the Court, per FOLGER, J.

safe scaffolds was engaged in the erection of the third, which fell; for those men were occupied where he was, a short distance

away from it. He knew that men, under the direction of Westman, were putting it up, and as they were not of the three persons who had together built the two scaffolds, he knew that Westman had taken others for the third. He knew that Westman was drunk on that day and at that time. If it was negligence in Coleby and the defendant to suffer Westman, in that state, to remain in the control and direction of men and work, was it not negligence in the plaintiff to remain in the defendant's employ, subject to Westman's direction and liable to evil results from work done under his supervision, likely to be an insufficient and negligent supervision from his perceptions being clouded and dulled by drink? But, in this case, whether the plaintiff was so negligent as to be contributory to the injury which he received, was a question for the jury. For Laning had testified that Coleby had said to him, that if Westman did not do better he would have to discharge him. It has been held that there is a formal distinction between the case of a servant who knowingly enters into a contract to work on defective machinery and that of one who, on a temporary defect arising, is induced by the master, after the defect has been brought to the knowledge of the latter, to continue to perform his service under promise that the defect shall be remedied. (See 10 W. R., infra.) And the fact that after Laning had entered the services of the defendant, he acquired knowledge of the intemperate habit of Westman, was a fact in the case to be submitted to the jury, to be considered by them, together with this promise of Coleby and all the other facts and circumstances, in determining the question whether the plaintiff himself helped to bring about the accident for which he seeks to charge the defendant. (Holmes v. Clark, 10 W. R., 405.) Knowledge in such a case is not of itself, in point of law, an answer to the action. (Id.) It has, indeed, been carried farther than the circumstances of this case require. (Ilocy v. Dub. and Belf. Railway Co., 18 W. R.,

Opinion of the Court, per FOLGER, J.

930; Ir. Com. Pl. And see Huddleston v. Lowell Machine Shop, 106 Mass., 282; Britton v. G. W. Cotton Co., Law Rep., 7 Exch., 130.)

It is now to be seen what was the action of the court below on this question, and what exception the defendant has taken to bring that action under review.

The defendant, when the plaintiff rested, and also when the proofs were closed, moved that the plaintiff be nonsuited on the ground that the negligence of him and his fellowemployes contributed to the accident. But there was enough in the testimony to justify the court in denying, as it did, that motion.

Two of the requests to charge, made by the defendant at the trial, were addressed to the question of the plaintiff's knowledge of Westman's habit, and the contributing negligence of the plaintiff by reason thereof; but each of them is based upon the idea that the knowledge of the plaintiff of the incompetency of Westman was a bar to a recovery, and not merely a fact to go to the jury with the other evidence; from all of which they were to determine whether the plaintiff was to be charged with negligence contributory to the injury. These requests were, therefore, properly refused.

The court upon this subject charged the jury that the plaintiff's knowledge of the fact of Westman's intemperance would not exonerate the defendant from responsibility; yet, it called upon the plaintiff to exercise more caution, care and judgment than he otherwise would have done, and that he was bound to exercise ordinary care and caution in view of that fact. The defendant excepted to so much thereof as instructed the jury that knowledge of the fact in the plaintiff did not exonerate the defendant. In our view the learned judge at circuit was correct in that; the charge was to the effect that in this case knowledge was not of itself, in point of law, an answer to the action. (See cases above cited.)

The requests to charge, which were refused, assumed as proven what was yet to be determined pro or con. by the jury,



Opinion of the Court, per FOLGER, J.

or rested upon propositions of law which we think were not sound, or upon propositions of law which though sound in themselves did not comprehend all the facts of this case, or assumed as established as fact in the case what was not in the testimony.

The declarations of Coleby, the admission of which in evidence was objected to by the defendant, were properly received. He was the agent of the defendant, with the power and the duty of hiring and discharging servants. He had the power to discharge Westman for any fault amounting to incompetency. His neglect to do so, after knowledge on his part of a reason why he should, was the neglect of the defendant, and it was competent to prove by his own declarations that he had such knowledge, made as they were to the plaintiff in the case. They were part of the res gestæ, and had a bearing upon the question of the contributory negligence of the plaintiff.

There is one other point made by the defendant, which requires notice.

The verdict for the plaintiff was for the sum of $10,000. A motion was made at Special Term to set aside this verdict as one against evidence, and that the damages are excessive. The motion was denied. From the order of Special Term denying it, the appeal was taken to the General Term, where a new trial was denied, and judgment ordered for the plaintiff on the verdict. The defendant claims here that the General Term was of the opinion that the damages were excessive, but also of the opinion that it had no power to reduce them, and no power to do aught but grant a new trial for that reason, which for that reason alone it declined to do. The defendant claims that the General Term having the power to reverse the judgment and order a new trial, unless the plaintiff should stipulate to reduce his recovery to a sum which the court should name, and to order that, if he did so stipulate, the judgment should be affirmed for that sum, it erred in not exercising that power.

It is true that it was a matter of discretion with the court

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