The plaintiff was nonsuited, as appears from the case, on the ground that his claim fell within the rule of those cases holding that the liability to injury was incident to his employment, and that the plaintiff, in accepting such service, must be regarded as having known the use to which the defendants* road was subject; and that he was therefore to incur such hazard as might be occasioned by such use ; and must be taken to have contracted with reference to the running of the cars over the bridge during the time of making the repairs. The case was disposed of, therefore, without regard to the question whether the injury was caused by the negligent acts of the defendants’ agents or servants, in the regular course of their employment. Whether the case was properly disposed of upon this ground depends entirely, as I conceive, upon the question whether the plain*234tiff, at the time of the injury, was in fact the servant or employee of the defendants. The general rule is, that if a servant, while in the employment of his master, by bis negligence, does any damage to another, such master shall be answerable for his neglect, because it is the duty of the master to employ servants who are skillful and careful. (1 Bl. Com. 431. 2 Kent’s Com. 259.) “This rule," says Chief Justice Shaw, .in the leading case of Farwell v. Boston and Worcester Rail Road Corporation, (4 Met. 49,) “ is obviously founded on the great principle of social duty, that every man, in the management of his own affairs, whether by himself, or by his agents or servants, shall so conduct them as not to injure another; and if he does not, and another thereby sustains damage, he shall answer for it. ,If done by a servant in the course of his employment, and acting within the scope of his authority, it is considered, in contemplation of law, so far the act of the master that the latter shall be answerable civiliter. But this presupposes that the parties stand to each other in the relation of strangers, between whom there is no privity ; and the action in such case is an action sounding in tort. The form is trespass on the case for consequential damages. The maxim respondeat superior is adopted in that case from general considerations of public policy." But this maxim has been held not to apply to the case of an injury to a servant or employee, occasioned by the negligence of another servant or employee, of the same master. The reason assigned for-this exception is,.that the relation between the employer and the servant rests in contract only, and that there is no implied contract, on the part of the employer, of indemnity to the servant, against injuries, in the course of the business in which ‘the latter is engaged.
The rule established in such cases from considerations of justice, as well as policy, is, that he who engages in the employment 'of another, for the performance of specified duties and services, for compensation, takes upon himself the natural and ordinary risks and perils incident to the performance of' *235such services, atid in legal presumption the compensation is adjusted accordingly. (Fartüell v. Boston and Worcester Rail Road Corporation, supra.) This rule has been followed in several cases in our own courts, and is the settled law of this state. (Coon v. Syracuse and Utica Rail Road Co., 1 Seld. 492. Russell v. Hudson River Rail Road Co., 17 N. Y. Rep. 134. Sherman v. The Bochester and Syracuse Rail Road Co., Id. 153. Boldt v. The New York Central Rail Road Co., 18 id. 432.)
The ground of exemption of the master, in all these cases, is the privity of contract between him and the person injured, from which the law presumes an agreement between them, for a compensation equal to the risk or peril of the service. If, therefore, the plaintiff in this case was not, in any legal sense, the servant or employee of the defendants, but ivas the servant or employee of another, and there was no privity between him and the defendants, the decisions referred to do not apply, and the defendants must be liable upon the general rule, to the plaintiff, the same as to any other stranger. The defendants can claim no benefit or exemption from a contract made between the plaintiff and another party, whatever risks he may have assumed, as between himself and his employer. It is claimed, however, on the part of the defendants, that the plaintiff was their servant or employee, and that having alleged in his complaint that he was such servant or employee, and verified the complaint by his oath, he cannot now deny that such was the character in which he was employed at the time of the injury. It is- so alleged in one count or cause of action in the complaint, and not in the other. In the first count or cause of action it is merely alleged that the plaintiff was lawfully upon the bridge at the time of the injury. But the defendants have, by their answer, put both allegations in issue. They deny that he was lawfully there, and also that he Was their servant or employee. And the answer, as well as the complaint, is duly verified. The pleadings, therefore, determine nothing in regard to the question, *236and the fact must he determined from the evidence before the court when the plaintiff rested. From the evidence it appears that the plaintiff, at the time he received the injury, was at work for Fowler, by the day, in repairing the bridge, and that Fowler was a contractor with the defendants. This is all that appears. If Fowler was a contractor with the defendants to do this job, he was not, in any legal sense, their servant or employee, and the men employed by him to do -the work certainly stood in no such relation to the defendants. They were his servants exclusively, and between them and the defendants there was no privity whatever. And I think it cannot be doubted, that had one of the persons employed by the defendants to run their trains been injured by the negligence of one of the persons so employed by Fowler, he would have been answerable for the negligence. It could scarcely be pretended, in such a case, that the negligent, and the injured, employees were, both, servants of the same employer. And the rule must be reciprocal. There is a wide and obvious distinction between a contractor or jobber, and a mere servant or employer, of the person who lets the contract. The latter could never be held responsible for the negligent acts of the former as for those of his servants, for the simple reason that none of them stand in the relation of servant to him. In the case in 4 Metcalf, (before cited,) the learned justice who delivered the opinion, puts the case of a rail road owned by one set of proprietors whose duty it was to keep it in repair, and have it at all times ready, and in a fit condition for the running of cars, taking a toll, and the cars and engines owned by another set of proprietors, paying toll to the proprietors of the road, and receiving compensation from passengers for their carriage; and the engineer of the proprietors of the cars receiving an injury from the negligence of the switch-tender of the proprietors of the road. In such a case, the opinion is expressed that the proprietors of the road would be liable to the engineer. And this is put upon the ground, that as between the engineer, employed by the proprietors of,the *237engine and cars, and the switch-tender employed by the corporation, the engineer would be a stranger, between whom and the corporation there could be no privity of contract.
That principle would obviously control this case. The plaintiff being the servant of Fowler, stood in no relation of privity to the defendants. As to them he was a mere stranger, for whose conduct they were in no respect responsible, and to whom they owed the same duty which they owed to any other stranger. The same principle has been recently established in the court of appeals in this state, in the case of Smith v. The New York and New Haven R. R. Co., (19 N. Y. Rep. 127.) It follows from this that the plaintiff was improperly nonsuited, if the evidence tended to show that the injury was caused by the negligence of the defendants’ servants in charge of the train which came in contact with the plaintiff at the time such injury was inflicted. The plaintiff was lawfully there, engaged in the work he was employed to perform. The defendants must be presumed to have known that the plaintiff and others were there employed, as the structure was part of their road, and they owed the plaintiff, and others similarly situated, a duty to observe due care and caution in running their trains, so as not needlessly to place them in peril.
The evidence tends to show that the regular passenger train, and a gravel train, which had not before passed that place while the plaintiff had been employed there, met upon the bridge, and that while the passenger train gave the usual signal of its approach, ringing the bell and blowing the whistle, the gravel train came on without giving any such warning, and struck the plaintiff while he- was observing, and in the act of-avoiding, the passenger train.
Whether the running of this unusual train in this manner, at this place, was, under all the circumstances, negligent or otherwise, was clearly, as it seems to me, a question of fact for the jury; as was also the question whether the plaintiff, *238situated as he was, was free from fault,, or whether his own want of care did not contribute to the injury.
[Monroe General Term, December 5, 1859.This question, as has been seen, was not passed upon as a question of law even, and did not enter at all into the considerations which controlled in the disposition of the case. I am of opinion, therefore, that a new trial must be granted, with costs to abide the event.
New trial granted.
T. R. Strong, Welles and Johnson, Justices.]