Opinion of the Court, per FOLGER, J. many more cases than we have cited, has brought us to the conclusion that as he had jurisdiction of the person and of the subject-matter, and as his act was not without the incep tion of jurisdiction, but was one no more than in excess of or beyond jurisdiction, the act was judicial. We are not unmindful of the considerations of the protection of the liberty of the person, and of the staying of a tendency to arbitrary exercise of power, urged with so much eloquence by the learned and accomplished counsel for the appellant. Nor are we of the mind of the court, in 2 Mod. (218, 220), that "these are mighty words in sound, but nothing to the matter." They are to the matter, and not out of place in such a discussion as this. Nor have we been disposed to outweigh those considerations, with that other class, which sets forth the need of judicial independence, and of its freedom from vexation on account of official action, and of the interest that the public have therein. (See Bradley v. Fisher, supra; Taffee v. Downs, in note to Calder v. Halket, 3 Moore P. C. C., 28, 41, 51. 52.) These are not antagonistic principles; they are simply countervailing. As with all other rules which act in the affairs of men, preponderance may not be fondly given to one to the disregard of the other; each should have its due weight yielded to it, for thus only is a safe equipoise reached. We have arrived at our decision upon what we hold to be long and well-established principles applied to the peculiar facts of this interesting case. The judgment of the General Term should be affirmed. All concur, except ANDREWS, J., absent. Judgment affirmed. Statement of case. WILLIAM H. BOOTH V. THE BOSTON AND ALBANY RAIL- It is the duty of a railroad corporation to see that there are a sufficient Where the negligence of an engineer of a train, in running it, is contribu- (Argued February 4, 1878; decided March 19, 1878.) APPEAL from a judgment of the General Term of the Supreme Court, in the third judicial department, in favor of plaintiff, entered upon an order denying a motion for a new trial and directing judgment upon a verdict. The action was brought to recover damages for personal injuries alleged to have been sustained by plaintiff, while an employee of defendant, by a collision on the road of defendant. The accident was the same by which a fireman and brakeman were killed, for whose deaths recoveries were had against defendant. (See Flike v. B. and A. R. R. Co., 53 N. Y., 550; Sprong v. B. and A. R. R. Co., 58 id., 56.) This case has once before been to this court. (Sce Mem., 67 N. Y., 593.) Plaintiff was an engineer in defendant's employ, and as such went with a freight train from Greenbush on the morning of February 3, 1870. This train was preceded by one under an engineer named Hughes, with seventeen cars, two brakemen and a conductor. Plaintiff's evidence tended to show that three brakemen were Statement of case. necessary for such a train, and were usually sent. One or two other trains had preceded this one the same morning. There was a head conductor, Rockefeller, who gave the conductors directions as to what cars were to go in the different trains. He also assigned the brakemen to go with the several trains. After receiving instructions, trains were started by and were each under the control of its conductor. Three brakemen had been assigned by Rockefeller, and directed to go with Hughes' train of seventeen cars on the morning in question, but one overslept himself and failed to go, and the conductor of the train started without him and without giving any notice to the head conductor Rockefeller of the absence of the third brakeman. Hughes' train, upon arriving at Chatham, was stopped to take coal upon the engine, as was customary. A train ahead of it still stood at the coal pile taking coal, and Hughes' train stopped and stood behind it for some ten minutes. The conductor and one brakeman got off and went forward to be ready to put on coal. When the forward train had gone, Hughes started his train up to get to the coal pile. The train broke in two, and eleven cars ran back; upon them was the other brakeman named Losty, who tried in vain to stop them; they collided with plaintiff's train and he was injured. Further facts appear in the opinion. Geo. W. Miller, for appellant. The negligence of starting the train with an insufficient number of brakemen could not be attributed to defendant. (Sammon v. N. Y. and H. R., 62 N. Y., 251; Rose v. N. Y. and II. R., 58 id., 217; Malone v. Hathaway, 64 id., 5; Cochrane v. N. Y. C. and H. R., 60 id., 133.) Matthew Hale, for respondent. Defendant was liable because of its negligence in not supplying the train with a sufficient number of brakemen. Flike v. B. and A. R. R. Co., 53 N. Y., 551, 554.) Opinion of the Court, per ANDREWS, J. ANDREWS, J. It is no answer to an action by a servant against the master, for an injury caused by the master's negligence, that the negligence occurred in the course and conduct of the business in which the servant was employed. For his own negligence the master is responsible to his servant equally as to any other person. The servant on entering the employment of the master does not assume the risks of the master's negligence. He assumes the risk of the neg ligence of a co-servant; but the reason of the rule, which exempts the master from liability to one servant for the negligence of another ceases, and has no application when the master's own negligence caused the injury. The rule that the master is not liable for the negligence of a co-servant does not, however, go to the extent of exempting him from liability in every case, when it appears that he did not himself do or direct the doing of the negligent act; or even when the immediate negligence is that of a person who in some sense was the co-servant of the person injured. There are certain duties which concern the safety of the servant which belong to the master to perform, and he cannot rid himself of responsibility to his servant for not per forming them, by showing that he delegated the performance to another servant, who neglected to follow his instructions, or omitted to do the duty intrusted to him. The duty of the master to select competent servants and to provide safe implements and machinery for the use of his servants belongs to this class. The rule that the servant takes the risks of the service "supposes," says Lord CRANWORTH, "that the master has secured proper servants and proper machinery for the conduct of the work." (Bartonshill Coal Company v. Reid, 3 Macq., 275.) From the nature and extent of the particular business, or the fact that the principal is a corporation and can only act through agents, it may be necessary for the master to commit the selection of servants, and the purchase and providing of machinery to servants and agents; but the duty to use reasonable care in performing these acts always remains the duty of the master, Opinion of the Court, per ANDREWS, J. and negligence in performing it is his negligence, whether he acted himself or by others. If the immediate negligence in these cases is that of an agent or servant, and a co-servant is injured thereby, the law imputes the negligence to the master and the master is liable the same as if the injury had been sustained by a stranger. The case of Flike, Admin'r, v. The Boston and Albany R. R. Co. (53 N. Y., 550), was decided upon an application of the principle that the master is liable to the servant for an injury caused by his own negligence. The difficulty in that case was in determining whether the act of sending out the first train with an insufficient number of brakemen was the act of the defendant. If it was, then upon the facts found by the jury, the verdict was right. There was wrong, injury and damage which sustained. the action. The duty of dispatching trains and manning them was confided, as the evidence then appeared, to Rockefeller, and it was made his duty to see that they were supplied with a sufficient number of brakemen. The negligence shown did not consist in any omission by the company to provide, by proper rules and regulations for the proper equip ment of the train; but in the failure of Rockefeller to do his duty, and the negligent oversleeping of Loftus, who was designated by Rockefeller to go upon it. The court therefore were called upon to decide whether the negligence of Rockefeller and Loftus was the negligence of co-servants, so as to bring the case within the general rule absolving the master from responsibility to one servant for the negligence of another; or whether the case was within the exception to the rule, and whether the duty to see that a sufficient number of brakemen were upon the train when it started upon its trip, was not like the duty to furnish competent servants and proper machinery, a duty at all times resting upon the company, which it was bound to discharge for the protection of all persons, its servants as well as others, and which if neglected, and injury to a servant resulted from the neglect, gave a right of action notwithstanding the fact that the immediate negligence was that of co-servants intrusted with its performSICKELS.-VOL. XXVIII. 6 |