While it is true that a variance in the facts of a case of negligence may vary the application of established rules, courts should aim at consistency and, where the facts do not materially differ, apply them strictly. This *Page 309 case, in my opinion, falls clearly within certain recent authoritative decisions in this state; as it does within recent decisions in Massachusetts and in England.
A general principle of the law of master and servant is that, among the risks which the employé assumes upon entering an employment, is that of injury caused by the negligence of his fellow-servants, engaged in the same employment. Where one servant is injured by the negligence of a fellow-servant, the master, if the negligence was with respect to a duty pertaining to a workman and not to some duty owing from the master, is not liable for the injury. (Crispin v. Babbitt, 81 N.Y. 522.)
The facts of this case are clear and undisputed. The defendant dealt in building materials and owned two warehouses, into and from which it was frequently necessary that the materials should be hoisted, or lowered. Hoisting tackle, made fast to chains running through the upper part of the warehouses and over a drum within them, was used upon these occasions. The drum was worked by an endless rope in the hands of a man within the building and, as it was made to revolve, caused the chain to descend to the street, or to be pulled up, as it was required. To the end of the chain was attached the hoisting tackle and, when it was necessary to hoist materials, the chain was pulled up and ropes, running over pulleys upon the tackle, fell down and passed over a pulley fastened at the entrance to the warehouse. A horse would be attached to one of the ropes and, as he was driven forwards or backwards, within the basement of the warehouse, the article would be hoisted up, or lowered. A foreman of the defendant supervised the workmen, when engaged in the work of hoisting articles in or out, and it was customary, at the time, to employ a man and horse to aid them. The plaintiff was in the general employment of a truckman, named McManus, who was not usually resorted to by the defendant for this assistance; but, upon this occasion, he was applied to and the plaintiff was sent with a horse, as he says, "to hoist at Dwight's," meaning the defendant. He went to one of *Page 310 the defendant's warehouses and, under the directions of the latter's foreman, in common with the other employés upon the premises, took part in the work of hoisting up barrels of lime into the lofts, by driving the horse forwards or backwards in the basement, as he was bidden. After the hoisting was completed at that warehouse, he, with the other men, went off to do similar work at the other warehouse near by. Until the hoisting tackle was made fast and the chain drawn up, preparatory to the hoisting of the barrels, the plaintiff, instead of going within the building, remained outside, upon the street and under the tackle. Owing to the carelessness of one of the men, who was stationed in the doorway to signal another man, who was operating the drum through the endless rope, the hoisting tackle was allowed to strike with force against the wheel, or frame, over which the iron chain passed and, breaking thereby, fell upon and caused the injuries to the plaintiff for which this action was brought.
I had supposed that the principles of law, which were applicable to the facts of such a case, and which were to determine the relative rights of the plaintiff and defendant, were well settled by recent cases and that their doctrine was well applied by the learned trial judge, when he dismissed the plaintiff's complaint. The question is, was the plaintiff, while engaged with the defendant's servants in doing the work described, for the time being, in the service of the defendant? That he was, and that he was in nowise acting independently in the matter, or as a stranger to the defendant, seems to me to be a very plain proposition, in view of what this court and other courts have laid down as guiding principles. If I read these cases right, they sustain the doctrine that one who is the servant of the general master may, if employed elsewhere temporarily, ad hoc, become the servant of the special master and it is of no consequence whether he is loaned for the purpose, or whether he is hired, not directly, but through his general master. If the particular employment subjects him to the directions and orders of another than his general master, he ceases to be the latter's servant for the time; whose responsibility *Page 311 for his acts, also, ceases. (Wyllie v. Palmer, 137 N.Y. 248;McInerney v. D. H.C. Co., 151 ib. 411; Higgins v. W.U.Tel. Co., 156 ib. 75; Hasty v. Sears, 157 Mass. 123;Donovan v. Laing, L.R. [1 Q.B. Div. 1893] 629; Rourke v.White Moss Colliery Co., L.R. [2 C.P. Div.] 205.) In the case of Higgins v. Western Union Telegraph Company (supra), this court passed upon a state of facts which cannot be distinguished, in the principle of the decision, from those in the case before us. The telegraph company had contracted with a contractor to restore its building and to replace the elevators within it. Before the completion of the contract, the contractor was making use of the elevator as a platform upon which the plaintiff, one of his men, might stand in doing some plastering upon the shaft. It was necessary to move the elevator up and down for the work to be done and the contractor, instead of making use of one of his own men, procured from the defendant one of the men in its regular service for the purpose of running the elevator. The defendant was using the elevator for the purpose of carrying passengers up and down during portions of the day; but, on the day of the accident in question, the elevator ceased carrying passengers about noon and after that time was made use of by the contractor for the rest of the day. The conductor of the elevator was negligent and allowed the car to start up without signal from, or warning to, the plaintiff, who was at work upon it, with the result of causing serious injury to the latter. The judgment, which the plaintiff had recovered below, was reversed here, upon the theory that the relation of master and servant between the conductor of the elevator and the defendant was suspended during the time he was doing the work for the contractor, in moving the plaintiff up and down in the shaft. In the opinion, which was delivered by my brother O'BRIEN, who now differs with me in his view of this case, the question of the responsibility of the defendant for the negligence of its servant was carefully considered in the light of the authorities in this state and in England, and the principles there laid down seem to me to be strictly apposite to the discussion here. It *Page 312 was observed that there was no question with respect to the fact that the conductor of the elevator, whose negligence caused the accident, was in the general service and pay of the defendant; but the question was whether, at the time of the accident, he was engaged in doing the defendant's work, or the work of the contractor, and that, as he was not at the time taking any orders from the defendant, but was directed by the contractor's servant in moving the elevator up and down, he became the servant of the contractor, engaged for the time being in doing his work and subject to his orders. The general proposition was advanced that servants who are employed and paid by one person may, nevertheless, be ad hoc the servants of another in a particular transaction and that, too, when their general employer is interested in the work. He quotes the remark of Lord COCKBURN, inRourke v. White Moss Colliery Co. (supra), that, "when one person lends his servant to another for a particular employment, the servant, for anything done in that particular employment, must be dealt with as the servant of the man to whom he is lent, although he remains the general servant of the person who lent him." The conclusion that was reached by Judge O'BRIEN, that the conductor of the elevator had become, at the time, the servant of the contractor, fits exactly the facts of this case; inasmuch as this plaintiff, like the conductor of the elevator, was, for the time being, engaged in the employment of another than his general employer in the common work which was being done and, therefore, was the servant of the defendant. If we apply the test, which was believed in the Higgins case to be the true one in such cases, namely: who directs the movements of those who are engaged in the work, we see that the plaintiff was, in the performance of his work, at the time, solely under the direction of the defendant, or his foreman. As cases supporting and justifying his conclusions, Judge O'BRIEN, very properly, relied upon Wyllie v. Palmer (supra) and McInerney v. D. H.C. Co. (supra), which illustrated how the servant of a general employer may be, for a particular employment, the servant of *Page 313 another and dealt with accordingly. In the Wyllie case, the defendants, with whom a contract had been made to furnish fireworks for an exhibition in the city of Auburn, sent with the articles contracted for two of their servants to render aid in the exhibition. An accident occurred, due to the negligence of one of these servants, while obeying an order of a member of the committee having in charge, for the city, the exhibition of the fireworks, and the plaintiff was injured. He sued the contractors to recover for the injury inflicted by their servant's carelessness; but a judgment of nonsuit was affirmed in this court, upon the ground that the plaintiff was not engaged in the defendants' business at the time, but was a servant of the committee. In the McInerney case the defendant railroad company had furnished an engine and a crew, which Willard, an owner of a lumber yard, had requested for the purpose of moving cars, which were being loaded in his yard. When they arrived at his yard, Willard assumed direction and ordered the moving of the engine, until the cars were all attached, which were to be moved out. The plaintiff was one of Willard's servants and upon the occasion in question, not having been warned by any one, was caught between two cars and injured, by the backing down of the engine. He brought an action against the railroad company, and a judgment of nonsuit was affirmed in this court, upon the theory that the crew of the engine were under Willard's orders; who was held to be, as to them, as well as to his own men who were engaged in the work, their common master.
If Higgins and the conductor of the elevator were fellow-servants under the contractor, although the telegraph company had merely loaned the conductor, was not this plaintiff quite as much a fellow-servant with the employés of this defendant? If McInerney and the crew of the railroad engine were fellow-servants while doing the work of moving cars in Willard's yard, although the railroad company had furnished its own men to operate the engine, how can it be fairly said that this plaintiff was not a fellow-servant with the defendant's employés? *Page 314
The doctrine laid down by the Supreme Court of Massachusetts, in Hasty v. Sears, (supra), is exactly applicable. There the plaintiff, who was a carpenter in the employ of N. Co., was sent by them to do some work for the defendant upon his building. The defendant's superintendent directed him to do work upon the elevator shaft. The conductor of the elevator had received orders not to run down below the second floor, until the plaintiff had finished his work. He disobeyed the order and, in consequence, the plaintiff received injuries, for which he sued the defendant, who was the owner of the building. It was held that he and the elevator conductor were both servants of the defendant at the time of the injury and, as their employment was a common employment, the negligence of the conductor was an obvious risk which the plaintiff assumed and for which the defendant was not answerable to him.
The English cases fully recognize the rule that a man may be a general servant of one person and yet, at the same time, be the servant of another in relation to a particular matter. They hold that the important element, in determining whose servant for the time being he is, is, which of the two persons had the control of him in the conduct of the particular business. (Jones v.Scullard, L.R. [2 Q.B. Div. 1898] 565; Donovan v. Laing, L.R. [1 Q.B. Div. 1893] 629.) In Donovan v. Laing, we find a situation which is not to be distinguished from the one in the present case. In that case, Jones Co. were wharfingers and contracted with the defendants, a construction company, to send their crane, with one of their men to run it, for the purpose of loading a ship at the firm's wharf. When the defendants' crane and man arrived at the wharf, the plaintiff, a servant of Jones Co., acted in giving signals to set the crane in motion for the purpose of raising and lowering the goods. The defendants' man, without waiting for a signal, negligently allowed the crane to swing around and the plaintiff was injured. It was held, in an action against the defendants, that they were not liable; for they had placed their crane and man at the disposal of *Page 315 Jones Company, and had no control over the work he was to do, and that, in the working of the crane, he was no longer their servant, but was bound to work under the orders of Jones Company. The court relied upon Rourke v. The Colliery Co. Lord ESHER, master of the rolls, observed that "so far as the working of the crane went, the man in charge was the servant of Jones Co. and was not the servant of the defendants." Lords LINDLEY and BOWEN agreed in that view: the former remarking that Jones Co. "must for that particular job be considered as Wand's, (the defendant's servant), masters," and the latter holding the law to be clear and pointing out the distinction between the carriage cases, Laugher v. Pointer (5 B. C. 547) and Quarman v. Burnett (6 M. W. 499), and the case at bar; where the general master has placed the servant under the control of another. It was, also, observed by Lord BOWEN that: "We have only to consider in whose employment the man was at the time when the acts complained of were done, in this sense, that by the employer is meant the person who has a right at the moment to control the doing of the act." Whether, therefore, we regard the recent authorities in this State, or in Massachusetts, or in England, we find the doctrine to be well settled, that one who is the general servant of a master, who employs and pays him, may, nevertheless, become the servant of another in a special employment and that it is immaterial that he does not enter the special employment by any direct hiring, or contract. In theHiggins case, the telegraph company loaned its servant to the contractor, and in other cases, from our and from other courts, payment for the services of the servants was made to their general master.
The plaintiff in this case was as much in the defendant's employment and under his direction and orders, as though the latter has engaged him, individually, to come in and assist in the work which was to be done in his building. That the plaintiff was in the general employment of a truckman, having an independent business, cannot, possibly, affect the question of the relation which he bore towards the defendant, *Page 316 or the servants of the defendant, when he entered upon the performance of the particular work under the directions of the latter, or his foreman. In all the cases, the existence of the relation of fellow-servants, between the plaintiffs and those from whose negligence their injuries were received, depended upon the sole question of whether, at the time, they were under the direction and control of the temporary employer in performing the special work for which they were loaned, or contracted for. In no essential respect can the position of this plaintiff be regarded as differing, essentially, from that in any one of the cases referred to; where the plaintiffs, though in the service of a general master, were held, for the time being, to become the servants of other masters. Of course, cases of independent contractors, where the contracts of the parties have fixed their relative obligations, including the furnishing of men and defining their duties, are, mostly, inapplicable.
Nor do I consider it to be any answer to the proposition, that the plaintiff was injured by the act of a fellow-servant and, therefore, cannot hold the defendant liable, that, at the particular moment when the accident happened, the plaintiff was not at work. His engagement was "to hoist" at the defendant's warehouses and his employment in that respect was continuous from the time when he reported for duty. The preliminary work of hoisting the tackle, which was necessary to be done at the second building before the plaintiff could go on with his part of the work, was being done by the defendant's servants with whom he was engaged in the same employment, namely: to hoist bags of lime from the street into the upper lofts of the warehouses. He was as much, at the time, under the control and direction of the defendant, or his foreman, as he had been at any time during the day. If the defendant did not direct him to take part in the hoisting up of the tackle, that was a mere matter of the division of labor and it seems to me to be the purest kind of technical reasoning to say that, because at the moment the plaintiff was at rest and not actually driving his horse to and fro, or helping *Page 317 in getting up the tackle, he was, therefore, withdrawn, protanto from the defendant's employment.
I think that the judgment of nonsuit at the Circuit was correct, and in accordance with the principles of the adjudged cases.
All concur with O'BRIEN, J., for affirmance, except PARKER, Ch. J., not sitting, and GRAY, J., who reads dissenting opinion.
Order affirmed, etc.