McCosker v. Long Island Railroad , 28 N.Y. Sup. Ct. 500 ( 1880 )

Barrett, J. —

The difficulty in this class of cases is in applying well-settled rules to ever-varying facts. That a master is not liable to his servant for the negligence of his fellow-servant is a general principle which now admits of no question, nor is it qualified by the circumstances that the sufferer happens to be inferior in grade to, and subject to the orders of, such negligent fellow-servant. For his own personal negligence, however, the master is as much liable to his servant as he is to a stranger; and he may be guilty of such personal negligence either in propria persones or by the act of an agent, to whom he has exclusively confided his business. In the latter case the agent is treated as the master’s alter ego. It is not unfrequently a perplexing question whether the person is in reality such alter ego or the injured enploye’s fellow-servant of a superior grade. Upon the solution of that question the decision of the present appeal depends. It is to be observed that the cases draw a distinction between individuals and corporations. The former may in person superintend their own work while the latter necessarily act by and through agents. Uor is such corporate agency confined to the status of a general superintendent. The corporation may have many departments of business or branches of service, requiring in each a competent executive head. So a particular department furnished with a general head may be made up of various minor departments which are the subjects of separate and distinct agencies. Each of the minor agents may be the company’s representative and alter ego, pro hac vice. Such heads of minor departments must not be confused with foremen, head-brakemen or other upper servants. The test is largely in the power of employing and discharging subalterns, also in the independence with which the function is exercised. Even the latter need not be absolute. There may, indeed, be general instructions from the higher agent, yet the subordinate agent may be supreme in the matter of execution. In the case at bar the injury was caused by the negligence of the yard-master Luke. This negligence was direct and personal. With knowledge of the broken bumper he gave the signal which, in the backing of the engine and train that followed, caused the accident. The plaintiffs intestate was a driller employed by the defendant. He had been hired by Luke and was under the latter’s immediate supervision and control. Luke’s duties included the hiring and discharging of drillers as well as the making up of the trains and the distribution of cars in and about the defendant’s yard and repair-shops. We are of opinion that these facts bring the case within the alter-ego principle. Luke was not, in any just sense, McCosker’s fellow-servant, even of higher grade. There may have been a foreman or head driller coming within this category, but that was not Luke’s position. He was responsible head of that division of the service. The making up of trains and the distribution of cars were evidently important details requiring method, arrangement and foresight. For this the company looked to Luke. To insure prompt and unquestioning obedience the power of appointment and removal, so characteristic of the master, were conferred upon him. It is true that he had a superior in the train dispatcher, who in turn was controlled by the general superintendent. But the duties of each were marked and independent. Even the superintendent was naturally under the general direction of the president, while the latter was ■subject to the board of directors, yet each represented the company in his proper sphere. So, in a minor degree, did the yard-master. He, of course, took his orders from the train dispatcher as to the number, character, time and extent of the trains to be made up. But he executed these orders in Ms own way, according to methods of his own devising and through servants of Ms own choosing. That under these circumstances he stood in the place of the company, pro hao vied, seems to us to be reasonably clear. The eases support this view (Bickner agt. N. Y. C. and H. R. R. R. Co., 5 Hun, 515; affirmed, 49 N. Y., 672; Laning agt. Same, 49 N. Y., 521; Flike agt. B. and A. R. Co., 53 N. Y., 549; Malone agt. Hathaway, 64 N. Y., 5; Besel agt. N. Y. C. R. R. Co., 70 N. Y, 171; Booth agt. B. and A. R. Co., 73 N. Y., 40; Fort agt. Whipple, 11 Hun, 586; Eagan agt. Tucker, 18 Hun, 348; and see Mullen agt. Phila. and S. M. S. Co., 78 Penn., 26; Railway Co. agt. Lews, 33 Ohio, 200; Railroad Co. agt. Keary, 3 Warren & Smith [Ohio], 209 et seq.; Dobbin agt. Richmond and Danville R. R. Co., 81 North Car., 547). The attempt to impress upon Luke’s acts a dual character, namely, that of the company’s representative up to a certain point, and that of fellow-servant beyond, is fully answered by the criticism of Chuboh, Oh. J., upon a similar contention in the Flike case. “ The acts of Rockefeller cannot be divided up and a part of them regarded as those of the company and the other part as those of a coservant, merely, for the obvious reason that all his acts constituted but a single duty. His acts are indivisible and the attempt to create a distinction in their character would involve a refinement in favor of corporate immunity not warranted by reason or authority.” It may further be observed that Luke was not working with the drillers when the accident occurred. He gave the signal which caused the accident in his capacity as chief of his special department. In doing so, to quote again from the opinion in Flikds case, he occupied “ the place of the corporation and the latter should be deemed present and, consequently, liable for the manner in which the act was performed.” Luke’s act in giving the signal was in fact the act of the corporation. There being no other point in the case of any importance the judgment should be affirmed, with costs.

Beady and Daniels, JJ., concur.