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(No. 80.)

Against a railroad company for injury to a servant, caused by the negligence of another servant, by means of the use of defective and unsafe cars, of which defendants had notice.

SUPREME COURT COUNTY OF RENSSELAER.

Zebedee Mignault
agt.

The Hudson River Railroad Company.

The abovenamed plaintiff complains against The Hudson River Railroad Company, defendants in this action, and says:

1 The complaint in this case is drawn, and the action based, upon the principle recognized in Keegan v. The Western Railroad Corporation (4 Selden, 175), in which the rule is laid down, that the cases holding that a principal is not liable to one agent or servant, for any injury sustained by him in consequence of the negligence of another agent or servant of the same principal, while engaged in the same general business, are only applicable when 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 happened. Hence, a railroad company, which continued in use a defective locomotive, after notice of its dangerous condition, was held liable to one of its servants, engaged in running such engine, for an injury sustained by him (without negligence on his part) in consequence of such defects.

In a recent case in the New-York Superior Court (Russell v. The Hudson River Railroad Company, 5 Duer, 39), it is held that the rule that a servant or agent cannot sustain an action against his employer, for an injury sustained by reason of the negligence of another servant or agent in the common employment, does not apply to the case of a day laborer whose contract is only from day to day, and who, by arrangement with the company, is carried to and from his work. The laborer is not then (while on his passage) in the dis

That said defendants, before and at the time hereinafter mentioned, were, and they are still, a corporation created by and under the laws of the State of New-York.

That on or about the 17th day of June, 1854, the plaintiff was the hired servant of the defendants, under a contract between them and him, by which he was to be employed in their workshop only, and that on the day aforesaid, the defendants, in violation of said contract, wrongfully and injuriously to the plaintiff, caused and directed the plaintiff to leave said shop for the purpose of repairing certain cars of the defendants, or cars used by the defendants, which were standing on the railroad track of the defendants, near their depot in Troy; and the plaintiff, at the time aforesaid, was employed in making such repairs, standing upon said track, between two of said cars, as he was under the necessity of doing for the purpose of making such repairs.

And plaintiff alleges, that the track where said cars were standing for such repairs was an improper and unsafe place for the making of such repairs, and that the two cars between which he was so standing, as aforesaid, were improperly constructed, that is to say, they were built without such usual projections at the ends thereof as to allow a person safely or securely to go or be between

charge of any service which his contract with the employer imposes upon him; and he can recover for any injury resulting from the exclusive negligence of the engineer in charge of the train.

In the complaint in the text, notice to the company of the defect in the car which occasioned the injury is alleged, and also, that plaintiff, at the time of the injury, by direction of the company's agents, was transacting for the company a business not within the general scope of his employment; and it is supposed, within the above decisions, that the complaint is sufficient, though on the trial at the Circuit, there being a defect of proof, it was dismissed and the plaintiff nonsuited.

them for the purpose of making repairs, or otherwise, and said defendants had knowledge thereof, and that said cars were so constructed, and that it was unsafe to go between them.

.

And plaintiff further alleges, that while he was so employed between said cars, as aforesaid, at the time aforesaid, the said defendants, by their agents and servants, wrongfully, negligently and at an improper and unusual time, caused a locomotive or engine, propelled by steam, to be driven upon said track, and propelled with great force and speed upon and against one of said cars between which plaintiff was standing as aforesaid, or upon and against a car, standing upon said track, forming a connection with those between which plaintiff was at work, and thereby wrongfully and negligently caused said cars between which plaintiff was standing to be brought violently into collision, and by and in consequence of the carelessness and negligence of the defendants in causing and allowing said repairs to be made in the unsafe and improper place aforesaid, and by and in consequence of the aforesaid improper construction of said car, and by the negligence, carelessness and improper conduct of the defendants, their agents and servants, in allowing said cars to be brought into collision as aforesaid, the plaintiff was caught and crushed between said cars, and his hips, abdomen and back were greatly bruised and fractured, his hand lacerated and rendered nearly useless, and he was otherwise greatly hurt, bruised and injured, and remained for a long time sick, suffering great pain, and has continued and is lame and disabled, and believes he will always so continue and remain; and during all the time. aforesaid he has been thereby prevented from performing his ordinary business, and has been obliged to, and has paid and incurred much expense in endeavoring to be healed

of the injuries and sickness aforesaid, and was otherwise greatly injured and damaged.

Wherefore the plaintiff demands judgment against the defendants, for the injuries and damages aforesaid, to the amount of $10,000, besides the costs of this action. MILLARD & KING,

Plaintiff's Attorneys.

(No. 81.)

Against a railroad company, for damages caused by running a ferry boat, in their employ, into a canal boat, through the negligence of defendants' agents.

SUPREME COURT-COUNTY OF HERKIMER.

John W. Bridenbecker and Wm. Campbell

agt.

The Hudson River Railroad Company.

The complaint of the abovenamed plaintiffs respectfully shows to this court:

That the abovenamed defendant,' by its agents or servants, on or about the 20th day of August, 1854, on the river commonly called the Hudson or North river, and adjacent to the city and county of Albany, so carelessly, negligently and improperly run, drove, propelled and managed, or caused to be run, driven, propelled and managed, a certain boat, commonly called a ferry boat, then

I It will be observed that the complaint does not contain the usual allegation that the defendant is a corporation, &c. As to the necessity of such an allegation, see note, ante, p. 507.

and there in the employ and business of the defendant, and which the said agents or servants were then and there running, driving, propelling and managing, or causing to be run, driven, propelled or managed, in the employment and business of the defendant, in, along and across said river, that by and through the carelessness, negligence and improper conduct of the said agents or servants of the said defendant, the said boat then and there run and struck, with great force and violence, upon and against a certain boat of the said plaintiffs, commonly called a canal or bull-head boat, of great value, to wit, of the value of $3,000, which was then and there being propelled and navigated on and along said river, and thereby then and there greatly stove, broke to pieces, strained, damaged and spoiled the said boat of the plaintiffs, by means whereof the plaintiffs were delayed and hindered in the use and employment of their said boat, and in the employment of their captain and hands engaged to navigate their said boat, and were forced and obliged to and did necessarily pay, lay out and expend a large sum of money, to wit, the sum of $600, in and about the repairing their said boat so damaged as aforesaid.1

Wherefore the plaintiffs demand judgment against the defendants for the sum of $1,000, besides costs.

GEO. B. JUDD,

Plaintiffs' Attorney.

1 The complaint contained another statement, slightly varied, of the

same cause of action, which is omitted as an improper repetition.

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