Anna Maria Hofnagle, Administratrix, etc., Respondent, v. The New York Central and Hudson River Railroad Company, Appellant

Anna Maria Hofnagle, Administratrix, etc., Respondent, v. The New York Central and Hudson River Railroad Company, Appellant. (Argued January 23, 1874; decided February 3, 1874.) One L. contracted to build an arch culvert for defendant on its road. Defendant agreed to furnish “centers ” over which the arch was to be constructed. Not enough centers having been furnished to complete the work, L., requested one F., in the employ of defendant as foreman of carpenters, to take down one of the centers which had been used. H., plaintiff’s intestate, an employe of defendant, was engaged, under the direction of F., in aiding to remove the center when the arch fell in consequence of the mortar not having sufficiently set to justify such removal, and H. was killed. Held, that conceding defendant had not performed its contract, this was not the natural or proximate cause of the accident; that it was the result simply of the negligent acts of L., or F., in removing the center; and that for such acts defendant was not liable. While a master is liable to a servant for injuries resulting from the negligence of a fellow-servant who has been charged with the performance! in place of the master, of duties owed by the master to the servant, where the negligence relates to the performance of those duties, he is not liable for the negligence of a competent fellow-servant who does not thus stand in the place of the master, although he may have some authority and power of direction over the injured servant. Appeal from judgment of the General Term of the Supreme Court in the fourth judicial department, affirming a judgment in favor of plaintiff entered on a verdict. This action was brought to recover damages for the death of John Hofnagle, plaintiff’s intestate, alleged to have been occasioned by defendant’s negligence. Defendant contracted with one Lighthall to build an arch culvert or sewer, the defendant to furnish the materials, “ centers,” etc. In the construction it was necessary to use wooden frames, called “ centers,” over which the arch was to be constructed, and which were designed to support it until it was finished and the mortar set, so that it would be self-supporting. The culvert was ISO feet long. Defendant furnished four centers, each about fifteen feet long. After constructing the arch over the four centers, Lighthall, in order to proceed with the work, requested one Fripp, a foreman of carpenters in the employ of defendant, to strike, or take down, the centers, so that they could be moved forward and the work proceeded with. By the direction of Fripp, Hofnagle, a carpenter in the employ of defendant and under the charge of Fripp, went with others to remove the centers. Upon removing one of them the arch fell and Hofnagle was killed. The arch fell because sufficient time had not been given for the mortar to set. Other facts appear in the opinion. Samuel Hand for the appellant. Defendant was not liable for Lighthall’s negligence. (Steele v. S. E. R. Co., 16 C. B. [81 E. C. L.], 550; Blake v. Ferris, 1 Seld., 48; Peck v. Mayor, etc., 4 id., 222 ; Peachey v. Rowland, 13 C. B. [76 E. C. L.], 182; Laning v. N. Y. C. R. R. Co., 49 N. Y., 528.) A person is liable only for the direct, natural and necessary consequences of his own acts or omissions. (Ryan v. N. Y. C. R. R. Co., 35 N. Y., 210; Loop v. Litchfield, 42 id., 351, 360; Thomas v. Winchester, 2 Seld., 408, 409; Winterbottom v. Wright, 10 M. & W., 109; Collins v. Cave, 4 H. & N., 225 ; Adams v. L. & Y. R. Co., L. R. [4 C. P.], 740; Blackmore v. B. & E. R. Co., 92 E. C. L., 1052; Collis v. Selden, L. R. [3 C. P.], 495-497.) One is not liable to a third person for the breach of a private duty, unless in case of fraud. (Langridge v. Levy, 2 M. & W., 519; S. C. in error, 4 id., 337.) Defendant having furnished a properly constructed and safe center for the part of the culvert that fell, its duty in reference thereto was ended. (Ogden v. Rummins, 3 Fos. & Fin., 751.) Defendant had a right to suppose Lighthall would not expose the men to unnecessary peril by striking the centers too soon. (10 M. & W., 114.) Amasa J. Parker for the respondent. Defendant is liable because it failed to supply the contractor with suitable and sufficient materials. (Laning v. N. Y. C. R. R. Co., 49 N. Y., 521; Flike v. B. & A. R. R. Co., Ct. of Appeals; Gilman v. East. R. R. Co., 10 Al, 234; S. C., 13 id., 433, 440; Fifield v. North. R. R. Co., 42 N. H., 225; 1 Redf. on Railways, 520; Myers v. Smith, 28 Vt., 59; Hayden v. Smithfield Co., 29 Conn., 548; Buzzele v. Laconia Co., 48 Me., 113; Snow v. Hous. Co., 8 Al., 447; Ryan v. Fowler, 24 N. Y., 410; 5 Am. L. Reg. [N. S.], 274; Keegan v. West. R. R. Co., 4 Seld., 175; Wright v. N. Y. C. R. R. Co., 25 N. Y., 562; Warner v. Erie R. Co., 39 id., 468; Connolly v. Patton, 41 Barb., 366.) When two or more parties contribute to an injury they may be sued separately or together. (Barrett v. Third Ave. Co., 45 N. Y., 528.) It is enough to make defendant liable that its failure to supply suitable and sufficient materials contributed to the injury. (Brehm v. Gt. W. Co., 34 Barb., 256; Cahill v. Kipp, 2 E. D. S., 413; Powell v. Deveney, 3 Cush., 300; Mott v. H. River Co., 8 Bosw., 345; S. & R. on Neg., 8, § 10.) [MAJORITY — Forger, J.] Forger, J. The relations of a corporate body to its .employes, have been of late much considered in this court. (Laning v. N. Y. Cent., etc., Co., 49 N. Y., 521; Flike v. Boston & Albany R. R. Co., decided Nov. 11, 1873.) It needs not that they be further discussed in the abstract, in this case. It will suffice that certain of the principles asserted or recognized in the late cases, be applied to the facts in this. The plaintiff’s intestate in his lifetime filled the place of a servant to the defendant, and it was his master. The duty which it owed to him, was to place beside him and over him competent fellow-servants, and to supply him and them, with adequate materials and appliances for the performance .of any labor, which was laid upon him or them. It was liable for the negligence of a fellow-servant, who was charged by it with the performance of that duty, and who thereby, for the occcasion, stood in its place as master. It was not liable for the negligence of a competent fellow-servant who was not thus charged, though he might have had some authority and power of direction over the intestate and servants of his grade. Following these principles through the facts of this case, we shall come to the result, that the defendant was not guilty óf negligence toward the intestate, and is not liable to the plaintiff". The immediate cause of the death of the intestate was the falling of the arch. The immediate cause of the fall of it, was the removal of the “ center ” which gave it support. It is not shown, it is not probable, that it would have fallen but for that. The removal of the “ center ” was the act of either Lighthall, the contractor, or of Fripp, the foreman. The preponderance of the testimony is, that it was the act of Lighthall. It is certainly the most favorable view of the testimony possible for the plaintiff, that it was the act of Fripp. Then it was the act of a co-servant engaged in the same general business. He was not charged with the performance of defendant’s duty, as that duty is above pointed out. He did not stand in its place as master, as did Coleby in the Laming case (supra). He held the same relation to it, and to his co-servants, as did Westman in that case. Though with a power of direction over the intestate and others, he was still, as they were, subordinate. The defendant was not, then, prima facie responsible for his act, though it was an act of negligence, for he was conceded to be of original and continued skill and competence for his position. It is urged, however, that there was not furnished to the contractor sufficient “ centers ” for the proper progress of the work, and that this was negligence, and that it was the negligence of the defendant causative of the injury. But can it be said, in any legal sense, that a failure to furnish in fulfillment of the contract, as many “ centers ” as were needed or desired, was the negligent cause of the disaster ? Let it be conceded for this case, that there was a failure to keep the contract .to furnish them, did that give authority from the defendant, to either the contractor or the foreman, or was it the legal moving cause for either, to heedlessly remove the still needful support to the arch % It will not be claimed that if the contractor, for lack of “ centers ” with which to carry on his work with such speed as he had right to use with his own men, had struck the one under the arch before its materials had hardened to self-support, and injury had happened to one of them, that the defendant would have been liable to the injured workman. (Winterbottom v. Wright, 10 M. & W., 109.) And why not ? Because it would have been the duty of the contractor, before he subjected the arch to the strain of its own weight, to learn if it was self-supporting, and it would have been his negligence if he did not; and his negligence would not have been a proximate or natural result, of a failure by the defendant to keep its contract with him. And besides, the defendant was not liable, for the contractor’s negligence to the contractor’s workmen. No more was a failure of the defendant to keep its contract, a proximate and natural cause of the negligence of the foreman in striking the “ center ” before the arch was stout enough. Equally was it his duty to know its true condition, and to make no rash experiment of its virtue ; equally was it his negligence not. so to do ; no more was the defendant liable to his fellow-servants for his negligence therein. Its contract was with Lighthall. He alone could suffer damage in contemplation of law from a breach thereof by it. Non-performance of it, if such there was, was not the cause, nor the cama camans of this ill result of an imprudent act. It did not have legal relations with it. It did not give authority for it. It did not make the removal of the support, before the mortar in the arch was sufficiently set, a matter of pressing necessity. The most it could naturally produce, was a cessation of the work, for the lack of the means to proceed with it. So that the act of removal, in legal contemplation, had its spring no farther back, than in the carelessness of him who directed it, be he Lighthall the contractor, or Fripp the foreman. For this the defendant is not liable. The defendant is in a position to avail itself in this court of these legal positions. The motion for a nonsuit made at the close of the proofs covered the points above discussed; so did the request to charge, which was refused; so did the exceptions to the charge delivered. The judgment appealed from should be reversed and new trial ordered, with costs to abide the event. All concur; Grover, J., in result. Judgment reversed. 53 N. Y., 549