dissenting. Several of the exceptions taken by the defendant’s counsel to the charge of the circuit judge, and to his refusal to charge as requested, I think were well taken. The charge confounds the negligence of the defendant with that of Bagley, the mechanic, employed by them to keep the building in repair, and makes the defendant practically liable as an insurer to all the workmen employed in said building, as against all injuries they may, or any of them might, receive in the course of his employment, in consequence of any defections of said building, tools, or in the apparatus and machinery used therein, or from the negligence of any fellow-servant. This, I think, is in conflict with the rule as generally held, and asserted in respect to the duty of the master to his servants. The master is only bound to exercise ordinary care not to expose his servants to unreasonable risks. The rule is well stated in the case of Gilman v. Eastern R. R. Co., 10 Allen, 338, as follows : “ It is quite well settled, both in England *4and America, that a master is bound to use ordinary care in providing his structures and engines, and in selecting his servants, and is liable to any of their fellow-servants for his negligence in this regard.” Whether the defendant, as master in this case, had exercised this ordinary care, was a question of fact, and not of law, and it was error in the circuit judge, I think, to hold, that when an employer devolves the duty of keeping a building in repair, upon another, he does so at the risk of being responsible himself, that the duty shall be performed by the other.
This ruling stripped the defendant of all protection from the rule that they were only bound to exercise ordinary care for the safety of his servants, and is in conflict, I think, with the rule as settled in Warner v. Erie Railway Co., 39 N. Y. 468. In that case it was held, that when the master exercised due care in the employment of skillful and competent persons to perform the service required in taking care of any structure, he is not liable to damages to an employee, resulting from the negligence of such co-employee, unless there has been actual notice to the master, or knowledge on his part that defects existed in the structure, which, unless removed, would be liable to produce fatal consequences. Page 473. “Personal negligence is the gist of the action.” Wright v. N. Y. C. R. R. Co., 25 N. Y. 562, per Alleh, J. When the negligence imputed. is that of .an agent, or fellow-servant of a common master, the master has been held liable only in the latter cases on the ground of notice to him, or to some superior agent acting in his place as master, of the incompetency or unfitness of the person employed, who caused the injury. Such was the case in Brickner v. N. Y. Cent. R. R. Co., 2 Lans. 506; and in Laning v. N. Y. Cent. R. R. Co., 49 N. Y. 521; and in Chapman v. Erie Ry. Co., 1 N. Y. Sup. 526. This latter case has since been reversed, but not upon any ground considered or discussed in this court, and is, in fact, affirmed upon the point on which it. was decided in this court. 55 N. Y. 579.
This case was put to the jury on the ground that the plaintiff was entitled to recover if Bagley, the mechanic employed by defend ant to take care of said building, was guilty of negligence, and not upon the ground that such recovery could only be had upon a finding, as matter of fact, that the defendant was guilty of negligence. The negligence of Bagley, a fellow-servant of the deceased, was treated as the negligence of the defendant. No personal *5negligence was charged or imputed to the defendant, either in the employment of Bagley, or otherwise, and the cause was tried and submitted to the jury upon an erroneous issue.
If a recovery in damages can be had by an employee against a master in a case like this, where the master, not being himself a mechanic, employs an experienced and 'well-reputed mechanic to erect or supervise and repair his building, and is guilty of no personal negligence in that, or in any other, respect, then not a manufacturer in the State, obliged to employ many workmen, can safely continue his business. He will do so at the peril of being overwhelmed with lawsuits, resulting from injuries received by some of his employees, in consequence of the neglect, or want of skill, of his master-builder or mechanic, or chief engineer, in charge of his steam engine and machinery, when he has done his best to employ skillful and competent persons, in charge of every department of labor, in his manufactory.
Judgment affirmed.