The first ground upon which the demurrer in this case is predicated is, that the 'complaint does not set forth facts sufficient to constitute a cause of action. The complaint, after stating that the defendants were an organized company and the owners of the road, and were running it, avers that on the 2d day of December, 1853, while they were so running the road, the plaintiff’s intestate was in the employ of the defendants as an engineer upon their locomotive, while it was in their use and service on that day. This is a sufficient allegation to show that the relation of master and servant existed between the parties. At all events it shows that McMillan was lawfully on the road on that occasion, at the request of the defendants, and as their servant actually engaged in conducting the locomotive at the time of the happening of the injury complained of. The duty is created by law, and the general allegation, I think, is sufficient. It may be said, it is true, that this is the rule as between the company and third persons, but that a different rule prevails as between master and servant, where particular accidents or mishaps may be guarded against by special contract. (Story on Agency, 453, e. 3 Seld. 498.) But in the view I have taken of another point it will not be necessary further to consider this position, at the present time. Ho special contract, however, between the principal and agent is to be inferred from such an allegation.
The great question is, whether the plaintiff should have averred actual notice to the defendants, of the defects complained of, or some of them. In Keegan v. The Western Rail Road Corporation, (4 Seld. 175,) Ch. J. Ruggles, in delivering the opinion of the court of appeals, says that “ the cases in which it has been held that a principal is not liable to one agent or servant for an injury sustained by him in consequence of the misfeasance or negligence of another agent or servant of the same principal while engaged in the same general business, were not applicable to the case then under consideration. That they were only applicable where the injury complained of happened without any actual fault or misconduct of the company, either in the act which caused the injury or in the selection or *453employment of the agent by whose fault it did happen. That whenever the injury results from the actual negligence or misfeasance of the principal he is liable, as well in the case of one of his servants as in any other.” He further remarks that in the case of third persons, the actual fault of the agent is imputed to the principal on grounds of public policy, but that it was unnecessary, to dwell upon the reasons, because the referee had found, as matter of fact, that the injury resulted directly from the negligence or misconduct of the defendants themselves, in continuing to use the engine having a defective and dangerous boiler, after notice of its dangerous condition. It will be perceived that the court lay great stress, and seem to base their opinion, upon the fact found, that notice had been given to the company of the defects in the boiler. The referee reported that during the two months preceding the explosion the engineer of the locomotive had reported to the defendants, on five or six different occasions, the defective condition of the boiler, and that those defects were entered on the books of the defendants kept for that purpose. Upon this state of facts, it was very properly urged and insisted, upon the argument, that the defendants having persisted in running the engine under circumstances showing an utter blindness to every thing except their own pecuniary profit, were guilty not only of negligence but intentional wrong ; it was an act dangerous to human life, and knowingly done. Knowledge was considered one of the essential elements necessary to maintain the action. And why has this difference in the rule between strangers and servants obtained, from the earliest cases down? The reason, says Story, in his treatise on Agency, § 453, d. and e., is that “ the mere relation of master and servant, or principal and agent, creates no contract, and therefore no duty on the part of the principal. In such cases the servant takes upon himself the hazard of an injury which may arise in the course of his business or employment. The master is no doubt bound to provide for the safety of his servant in the course of his employment, to the best of his judgment, information and belief. But the servant is not bound to risk his safety in the service of his *454master, and may if he thinks fit, decline any service in which he may have reason to apprehend injury to himself. And in most of the cases in which danger may be incurred, if not in all, he is just as likely to be acquainted with the probability and extent of it, as the master.”
These remarks I consider as peculiarly appropriate to the present case. The plaintiff’s intestate was the engineer upon the very locomotive which contained the defects complained of. It was his duty to have made known the defects to the company, as in the case of Keegan v. The Western Rail Road Corporation. He was responsible as well to the public as the company, for not making them known. It was his duty, and it was confided to him by his employers, to guard against all accidents liable to happen by the escape of horses or other animals upon the track, through the defect of fences or otherwise. He would be more likely to know of occasional defects in fences or cattle-guards or bridges than the company or their officers elsewhere located. He was bound at all times to exercise all diligence and caution against the happening of accidents, and to thus protect himself as well as his passengers and the property intrusted to his care. He had the knowledge, or the means of knowledge, within his own power. He might have required special indemnity against all risks, or he might have given notice to the company and have thrown the risk upon them. (3 Mees. & Wels. 1. Story on Agency, 451 d, e. Parsons on Contracts, 528.) “The master,” says the latter, “ is not responsible ’for an accident happening in the course of his service, unless the master knew that it exposed the servant to peculiar danger, and the servant did not.” (And see Add. on Cont. 744.)
The servant, then, to be entitled to recover, as seems to be established by all the cases, must prove actual notice to the principal of the defects complained of as causing the injury, or some of them. And in order to be able to prove notice, he must allege it in his complaint. It is argued that no notice was averred in the case of Keegan. But the evidence was received by the referee without objection. And the question did *455not arise in the court of appeals, whether it was necessary to aver that fact or not. If the objection had been taken at the proper time the referee must have ruled it necessary, or have violated a well known rule of pleading, that it is necessary to aver whatever is material or necessary to prove.
[Schenectady General Term, May 7, 1855,It is further insisted that the defendants in this case must have known whether they built the fences or not, and that they are charged with not building. The plaintiff, however, avers that the horse escaped on to the road in consequence of a defect in the fence between a certain lot and the rail road, which it was the duty of the defendants to maintain and keep in repair; they admitting that the fence had been built but had become defective and out of repair. The same remark is applicable as to the cattle-guards, and the bridge. All which defects, as before remarked, were more likely to have been known to the engineer than to the company, particularly the insufficiency of the cow-catcher attached to the locomotive, to permit which he might be deemed to have been grossly negligent himself. Without further pursuing this subject, I am satisfied that the judge was right at special term in sustaining the demurrer, and I am for affirming the order, with $10 costs.
Order affirmed.
C. L. Allen, Bockes and James, Justices.]