The plaintiff, a man about thirty-four years of age, was employed by the defendant in its Duane street electric lighting station, as an oiler of machinery, on the 20th day of June, 1901. He had been in such employ from November, 1899. At about seven o’clock in the evening of the twentieth of June, while in the discharge of his duties, he noticed that a machine, known as a commutator, or rotary converter, had become red hot, and this was followed by pieces of copper and iron being thrown about the room. He attempted to run away, after being hit by a piece of the copper, but was struck by a piece of iron on his leg, and the leg was cut off. An examination after the accident showed that the commutator had, by some action of the electric currents, been heated to such an extent that the motion of the machinery caused it to fly to pieces, with the result to the plaintiff above stated. Upon .the trial it was developed that the defendant has a series of electric lighting stations, connected by a main cable inclosed in a conduit, and it was custom- ' ary, after the down-town places had been closed, to connect the Duane street station with the up-town plants, to aid in furnishing the current to residences, etc. On the evening in question one Harry L. Meyers, foreman of the One Hundred and Twenty-first street station, telephoned the Duane street station for more power *439to meet the up-town demand, and having made his arrangements he sent one Brinkman, who is conceded to have been a competent man, to the high-tension switch room to switch in “No. 6,601 feeder.” Instead of doing this Brinkman put in the wrong switch, which was followed by an electric display in the One Hundred and Twenty-first street station which threw Brinkman down a flight of stairs and threatened to do much damage. Mr. Meyers took steps to prevent the local damage and then examined the switch board, which he found in a condition which he says would result in a short circuit in the Duane street converter, and produce the accident for which the plaintiff seeks damages. This explanation of the accident appears to be fully conceded, and it would seem under the authorities in this State that, as it was due to the negligence of a fellow-servant, who is conceded to have been a competent man, the plaintiff is without a remedy. The defendant’s motion to dismiss upon the ground that the plaintiff had failed to establish facts sufficient to constitute a cause of action, and that the action was due to the negligence of a fellow-servant, were, however, overruled, and the principal question litigated and submitted to the jury was whether the defendant was negligent in not providing its machine in the Duane street station with automatic current breakers or fuses, which, it is claimed, would have made the accident impossible. The jury, under a charge which submitted practically but this one question, has found a verdict for the plaintiff, resulting in a judgment for something over $20,000 and the defendant appeals to this court.
It was not disputed that the defendant had equipped its machine with current breakers; that it had a competent man on hand to operate such current breakers, but there was a dispute in the evidence whether there was not a better contrivance ■— an automatic current breaker ■—-which was in more or less general use, and this question was fully litigated, with the result that the jury has found that the defendant was negligent in not providing this automatic current breaker, or in not having an approved fuse upon both sides of the machine, but it seems to me that all of this part of the testimony is wholly immaterial, from the fact that the lack of these contrivances was not the proximate cause of the plaintiff’s injury. If the accident had been initiated by the defendant, or if it had *440been due to the neglect of the defendant in furnishing proper appliances at the station where Brinkman was employed, or if it had been caused by the falling or crossing of the wires, where such accident was likely to happen, and where reasonable foresight and prudence would have suggested such a result, it might be important to- determine the question of defendant’s negligence at the Duane street station,' but, under the conceded facts in this case, the question of whether the defendant had proper safeguards about its machine in the Duane street station is of no importance, because the failure to have these appliances was not the proximate cause of the in July, nor was it a cause concurring with any antecedent negligence on the part of the defendant. The plaintiff would not have been injured except for the negligent act of a fellow-servant engaged at the One Hundred and Twenty-first street plant. There is no suggestion that the injury would have occurred except for the fact that the plaintiff’s fellow-servant disregarded his orders and turned on the wrong switch, and as it was no part of the defendant’s duty to anticipate that á competent mail would disregard his instructions in dealing with the proper appliance which had been provided, it did not owe the plaintiff the duty of making it impossible that an accident should result.from such negligence on the part of Brink-man. The test of negligence is not whether it was possible to prevent an accident, but whether the defendant, under the circumstances, owed the duty of preventing ah accident which would not have occurred except for the negligence of a fellow-servant. The duty to provide a reasonably safe place in which the servant is to labor, the duty to provide reasonably safe tools and appliances, do no.t charge the master with liability for an accident which occurs to the servant, unless the particular accident results because of a neglect of these duties; the master’s negligence must be the‘proximate cause, not a mere incident in a chain of events set in motion by some one for whom the master is not responsible. There is no suggestion that this particular accident would have happened except for the carelessness of Brinkman, and the fact that the defendant had not anticipated this carelessness and made it impossible for the plaintiff to be injured, does not, in my opinion, constitute actionable negligence on the part of the defendant, who was liable only foi negligence which should be the proximate cause of the injury. It *441may be conceded that if the defendant’s cables connecting its several stations had been exposed to the danger of contact with other wires carrying heavy currents of electricity it would have been its duty to have provided the best practical appliances, and it might have been liable if it had failed to do this and an accident had resulted from contact with other wires, but it does not follow that if the accident had resulted from the negligence of a fellow-servant in misplacing a switch that the same liability would follow, for it is not the duty of the master to provide against the errors of competent servants, at least in so far as this duty relates to fellow-servants.
This much upon the reason of the case. The authorities, I believe, sustain the propositions above set forth. “ The proximate cause,” say the court in Insurance Co. v. Boon (95 U. S. 117, 130), “ is the efficient cause, the one that necessarily sets the other causes in operation. The causes that are merely incidental or instruments of a superior or controlling agency are not the proximate causes and the responsible ones, though they may be nearer in time to the result. It is only when the causes are independent of each other that the nearest is, of course, to be charged with the disaster.”
In the case of The G. R. Booth (171 U. S. 450, 458) the court cites with approval the language of the court in Milwaukee & St. Paul R. Co. v. Kellogg (94 id. 469) in reference to what constitutes the proximate cause, as follows : “ The inquiry must always be whether there was any intermediate cause, disconnected from the primary fault, and self-operating, which produced the injury.” The court continues : “ In the present case the burning of the city hall and the spread of the fire afterwards was not a new and independent cause of loss. On the contrary, it was an incident, a necessary incident and consequence, of the hostile rebel attack on the town — a military necessity caused by the attack. It was one of a continuous chain of events brought into being by the usurped military power — events so linked together, as to form one continuous whole.”
In Goodlander Mill Co. v. Standard Oil Co. (27 L. R. A. 583, 586; 63 Fed. Rep. 400, 405) a proximate cause is defined as follows : “ The proximate cause of an injury is that cause which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and Avithout which the result would not have occurred.” And the same court say (p. 587): *442“ The remote cause is that cause which some independent force merely took advantage of to accomplish something not the probable or natural effect. thereof. The absence of the valve was, doubtless, in a sense, a cause of the injury — an antecedent cause; but, where the negligent act is not wanton or malum in se, the law stops at the immediate, and does not reach back to the antecedent cause.” The failure of the defendant to install an automatic current breaker was not negligent, in so far as it relates to the accident now under consideration, because the failure to have such a current breaker was but the remote cause of the accident, and the defendant was not bound to anticipate carelessness on the part of competent servants any more than a railroad company is bound, in behalf of its employees, to anticipate that engineers and conductors will misunderstand or disregard the orders under which trains are operated. The rule which I conceive governs in the present case is, that “ Although there may have been such an act or omission as would have rendered the defendant liable had damages proximately resulted therefrom, yet if they did not proximately so result the defendant is not liable though the plaintiff is damaged and though such damages would not have resulted but for the act or omission complained of.” (21 Am. & Eng. Ency. of Law [2d ed.], 485, and authorities cited under note 2.) Assuming that it would have been negligent for the defendant to operate its machine without an automatic current breaker if the damages had been caused by its primary negligence, there is no justice in holding the latter liable -where it had discharged its duty in providing competent fellow-servants, and the accident results from the carelessness of such servant. The proximate cause is “ that which immediately precedes and produces the effect.” (Hoffman v. King, 160 N. Y. 618, 629; Trapp v. McClellan, 68 App. Div. 362, 365.) As there was no dispute as to the original cause of the accident, the question of the proximate cause was one of law to be determined by the court. (Hoffman v. King, supra, 628), and it was error to submit the case to the jury.
I am of opinion that the charge of the learned trial court, as modified, constituted error calling for a reversal of the judgment. The court, after stating that the defendant was not bound to anticipate the mere possibility of an accident, added: “ But if, in the *443imperfection of human hands and human eyes and human people, as we employ them and as we know them, by mistake, by drowsiness, by anything that pertains to the natural imperfection of man, if, considering that you find that an error like this of the man in 121st Street was a probable error, or an error likely to occur, that would misdirect these currents and cause the thing like this, then you may find it was something that in reasonable prudence should have been guarded against.” Obviously, this is not the law, for it makes the master liable for the negligence of competent fellow-servants. Defendant objected to this portion of the charge, and the court modified it by saying, “ I mean by some rule or regulation, or some apparatus or machinery,” and defendant objected to the charge as modified. Subsequently, defendant’s counsel read his fourth request to charge, granted by the court, as follows: “ In considering whether the appliances furnished by it were reasonably safe, the defendant was entitled to rely upon and expect the exercise of reasonable care on the part of its employees, and was not bound to anticipate or guard against the possibility that any fellow-servant of the plaintiff would negligently turn the wrong switch.” This might have been construed to have corrected the error in the main charge, but the learned court commented : “I charge that, and meant to keep close to that in my charge. It may possibly be I went a little beyond it, although I had no intention of doing so. I mean that the company has a right to presume that the other employees will be reasonably careful; and the things that happen in the best regulated families, as it is said, outside of that which causes danger, and so on — I mean the things that happen, although reasonable care and prudence were exercised by the employees.”
This, it seems to me, could have no other effect than to confuse the jury. There was no evidence in the case, so far as I am able to discover, that there was any defect in the switchboard at the One Hundred and Twenty-first street station ; that there was any drowsiness or other imperfection on the part of Brinkman — certainly none for which the defendant was in any manner responsible — and the charge, as it was finally completed to the jury, must have left them with the impression that they had a right to find that in some way the master was liable to the plaintiff for the act of Brinkman. Unless the defendant was responsible for his acts, there could be no *444relation of the defendant to the proximate cause of the injury, and if the question was to go to the jury at all, it was important that the law should be stated with great clearness. If the evidence had warranted the jury in finding that the defendant, though originally discharging its duty in the employment of a competent fellow-servant, had imposed such duties, and had required such hours of service that he could not, in the natural course of events, be expected to remain competent, there might have been a question for the jury, under a proper charge, but under the evidence as I find it no such condition of affairs existed, and a charge which permitted the jury to speculate as to whether the defendant ought to have anticipated that Brinkman or some other fellow-servant of the plaintiff would disregard his orders, was error. This duty the defendant probably owed to third persons, who might lawfully have been in a position to receive injuries, but it owes no such duty to the plaintiff, who assumes the risks of just such accidents.
The judgment and order appealed from should be reversed and a new trial granted, with costs.
Jenks, J., concurred.
Judgment and order affirmed, with costs.