By the terms of the contract between the plaintiff and the defendant, it was provided "that, in case the defendant required a man to take care of the horses," the plaintiff was to board him at the price named in the contract. The plaintiff was to keep the horses, furnish stable room, hay, and other articles enumerated, and the defendant, if the company deemed proper, had the right to furnish a man to take care of them. The duties of the person thus employed would be to perform all kinds of work that was required for the proper care of the horses, and this would necessarily include providing them food and all other things which were essential to their comfort and care, which the plaintiff was bound to furnish under the contract. This, I think, is the plain meaning of the contract, and it is not susceptible of any other reasonable construction. If the man furnished was not to do this kind of work, then with equal propriety he might be exonerated from performing other services which were required for the proper care of the horses.
It is insisted by the defendant that there was no proof that Brophy had been employed by the defendant at all, much less that he was employed by the defendant to do the work he was doing at the time the accident happened. I have already discussed the question, whether, by the terms of the contract, Brophy was employed within the sphere of his duty, and, as I have come to the conclusion that he was, it is unnecessary to enlarge on the subject. As to the question whether he was employed by the defendant, I think it was a question of fact for the jury to determine. He certainly did the work. He was not employed or paid by the plaintiff, and he went there to take care of the horses by the *Page 246 request of the defendants. The general superintendent of the company says that he sent a man, with directions, giving the names of persons to take care of the horses, that Brophy was recommended as a fit and proper person, and he thinks he gave the man thus sent his name. The agent thus sent employed Brophy, and he was engaged by his direction and authority. Here was sufficient evidence, prima facie, to show that Brophy was employed, and, at least, to submit the matter to the jury.
It is further insisted, that, even if Brophy, under the proof, is to be regarded as the servant of the defendant, the latter would only be liable for his negligence when Brophy was acting within the scope of his employment, which was not the case here. As I have already indicated, the contract, which provided that the defendant might furnish a man to take care of the horses, included and contemplated, according to its real intention, that the person thus selected should perform any and all services required for the protection, safety and comfort of the horses. It was, therefore, within the range, and a part of his duties to attend to providing them with hay, and clearly within the scope of his employment. It is no answer to say that the plaintiff was bound to furnish and supply the hay and place it within their reach. Concede that he was thus obligated, and that his contract embraced this, it does not, for that reason, exclude the person employed by the defendant from the performance of the same duty, if that was required.
As the contract between the plaintiff and the defendant in this case provided for the employment by the defendant of a man to take care of the horses, it was intended that such person should act in connection with and an assistant of the plaintiff in performing the contract. In such a contingency, it is insisted that the plaintiff and Brophy were engaged in a common employment, in taking care of the animals in question, as the servants and agents of the defendant, and that, under such circumstances, the principal is not liable to one servant or agent for the act and conduct of another servant. This distinct objection does not appear to have been *Page 247 taken upon the trial, but as the defendant moved for a nonsuit upon the ground, among others, that upon the evidence in the case he was not liable, and as the alleged difficulty is one which, if it exists, could not be obviated and strikes at the very foundation of the plaintiff's right to recover, I am inclined to think that the point is now before us. The rule is well settled that the master is not responsible for injuries resulting from the negligence, carelessness or misconduct of a fellow servant engaged in the same general business. (Wright v. N.Y. CentralR.R. Co., 25 N.Y. 562-564, and authorities cited.) But this rule has no application to a case like the present. The relation of master and servant did not exist between the plaintiff and the defendant. The plaintiff was employed, under a special contract, to provide for and take care of certain horses of the defendant, but he was not in any sense a servant of the defendant. Suppose the plaintiff had contracted to furnish materials merely, and the agent of the defendant had been engaged in executing them, could it be said that both parties were servants of the defendant or engaged in the same general business? I think not. It is only when the business is general in its character, such as railroad employees are engaged in while prosecuting the work of the company, that such a rule can be held to apply.
There being no error on the trial, the judgment of the General Term must be affirmed with costs.
Judgment affirmed. *Page 248