dissenting.
There was no error in the refusal of the court to nonsuit the plaintiff; nor in the denial of the motion for a new trial made on the minutes of the court on the ground of insufficiency of evidence. There was proof sufficient, as I think, to require a submission of the case to the jury. But there is a question of law in the case, arising upon the rulings of the court, of grave import. The plaintiff was the pilot of the steamtug “ William Bliss” at the time of *41.the collision between that vessel and tbe steamtug “ J. P. White,” which collision caused the injury to the plaintiff for which the action is brought. During the trial a question arose as to whether there was any negligence which contributed to the injury on the part of those having the Bliss in charge. The court ruled in effect that negligence on the part of the crew of the Bliss, other than the personal negligence of the plaintiff himself, or of Sickles whom he had put in charge of the helm, would not defeat the plaintiff 's action ; so in furtherance of this ruling the jury were instructed, in effect, that a different rule of law Would control the case from what would prevail, if the action were brought by the owners of the Bliss to recover for injuries to the vessel growing o.ut of the collison, and the learned judge added, in substance, that in such case the owners would probably be responsible for any negligence on the part of those having the Bliss in charge. The ruling that negligence on the part of those in charge of the Bliss, other than the plaintiff and Sickles, would not defeat the plaintiff's action, although contributing to the injury, is challenged as erroneous. Had the plaintiff been a mere passenger on the Bliss the ruling would be vindicated by numerous decisions. (Chapman v. The New Haven R. R. Co., 19 N. Y., 341; Colgrove v. The N. Y. & N. H. and N. H. & Hartf. R. R. Co., 20 id., 492; Webster v. The Hudson River R. R. Co., 38 id., 260; Barrett v. The Third Ave. R. R. Co., 45 id., 628.) There are other cases of similar import with those cited. The decision in Mooney v. The Hudson River R. R. Co. (28 N. Y. Superior C. R. [5 Rob.], 548) is doubtless unsound. There have been cases holding that passengers on a stage coach could not recover for an injury resulting from the negligence of a third party, in case the negligence of the driver of the coach contributed to the injury. It was so ruled at the circuit in Brown v. The N. Y. C. R. R. Co. (32 N. Y., 597, 601); but the point was taken from the case by the finding of the jury that there was no negligence imputable to either the plaintiff or the driver of the coach. The question was somewhat discussed by Davis, J., in this case, and he remarked that ho could see no difference whatever between the case of a passenger by a stage coach and a passenger on a train of cars. It was then added, however, quite significantly, that a majority of the judges *42were of the opinion that the true rule in the case of a p assenger by stage coach-was laid down at the circuit in that case. This opinion, I think, has not yet been adopted as settled law. In speaking of this case, Church, C. J., remarked in Robinson v. N. Y. C. and H. R. R. R. Co. (66 N. Y., 11), that the opinion said to have been expressed in Brown’s Case (supra) had not the weight of authority. The principal recognized and adopted in the Robinson Case seems in hostility to such opinion. The decision in Beck v. East River Ferry Co. (29 N. Y. Superior C. R. [6 Rob.], 82) was vindicated on the ground that the plaintiff, with others in the boat, were engaged in a joint enterprise, and therefore he was responsible for the negligence of his associates. In Massoth v. The D. and H. C. Co. (64 N. Y., 524) the plaintiff’s intestate was riding on a load of hay with his employer Smith at the time of the injury. In referring to the point under consideration, Allen, J., remarked (page 529): “Were it necessary to pass upon the question, I should hesitate, as did the learned judge upon the trial, in holding that the consequences of Smith’s negligence could be visited upon the plaintiff and defeat the action.” The case of Dyer v. The Erie R. R. Co. (5 W. D., 430), recently decided in the Court of Appeals, seems precisely that of the Robinson Case (supra). The syllabus in Dyer’s Case is this : That where the plaintiff was injured while riding in a wagon by permission of the owner, who was driving, negligence of such owner is no bar to an action for the injury. (See, also, Metcalf v. Baker, 34 N. Y. Superior C. R. [2 Jones & Spencer], 10, 12;. Knapp v. Dagg, 18 How., 165; per contra Payne v. The C. R. I. and P. H. R. Co., 39 Iowa, 523.) In this connection, mention should be made of the case of Armstrong v. The Lancashire and Yorkshire Railway Co. (10 Eq., 47; also reported in 12 Eng. Eq. Rep. [Moak’s notes, 508]). In this case the plaintiff was a traveling inspector of the carriage and wagon department of the London and Northwestern Railway Company, and was traveling on a pass from this company in one of its cars, when a collision occurred between the train in which he was riding and some loaded wagons in motion on the defendant’s road. The jury found that the accident was caused by the joint negligence of the two companies. It was held that the plaintiff was so far identified with the com*43pany carrying him that he could not recover. This decision was based on the case of Thorogood v. Bryan (8 Com. Bench R., 115), which case has been greatly criticised, and which it is quite possible may be ultimately overruled in our own courts; in which case it will carry with it Armstrong’s Case. Without special examination of these cases here, or attempting to collate them with the decisions in our own State, it will suffice to say that if sound they are favorable to the defendant in this case, if not decisive of the question under examination. But it seems that the question before us may be determined without the benefit of those cases.
On principle and on intimations given in the recent decisions in this State, the conclusion of Mr. Justice Davis in the Brown Case (supra) seems to be a sound exposition of the law applicable to the point under immediate examination, to wit, that there is no difference whatever between the case of a passenger by stage-coach and a passenger on a train of cars or on a boat. They stand alike in law as to contributory negligence in those having charge of the means of conveyance. As is well said by Judge Davis, whatever difference there may be is one of fact merely, growing out of a difference in motive power, and the corresponding necessity for more stringent rules and greater vigilance in one case than in the other. In neither has the passenger any control or management or even advisory power over the management of the vehicle in which he is being conveyed. In Beck’s Case (supra) the ground of decision against the plaintiff’s right of recovery was this, that, although himself free from fault, yet he participated with others in the management of the boat whose negligence contributed to the injury complained of. His action was defeated because he was not a mere passenger. He was assisting in the management of the boat. So in the case in hand, the plaintiff was not a mere passenger on the Bliss, he was her pilot, and with others had the vessel in charge. Those cases which give an action to passengers, where those in charge of the means of conveyance, by their negligence contribute to the injury, are put upon the ground that the passenger has nothing to do with the management of the conveyance ; and it is the logical inference from them all that if *44the party claiming to recover has the management of the vehicle or means of conveyance conjointly with others, by whose negligence he is injured, his right of action for the injury is barred against third parties whose negligence may also have contributed thereto. An agent or servant cannot have an action against his principal for an injury sustained by him, caused by the negligence of a. fellow-servant of the same principal engaged in the same employment, save where such fellow-servant was negligently appointed or retained in place, or holds the position of his principal. (Malone v. Hathaway, 64 N. Y., 5, 8; Hofnagle v. N. Y. C. and H. R. R. R. Co., 55 N. Y., 608; Fort v. Whipple, 18 N. Y. S. C. R. [11 Hun], 586.) In the .case at hand the plaintiff could have no action against the owners of the Bliss for the injury of which he complains. Nor could the owners of the Bliss have an actiou for negligence against the owners of the White, in case those in charge of the Bliss were guilty of negligence, contributing to the injury. It seems to follow that the plaintiff’s action was barred, in case the injury complained of was caused in any degree by the negligence of those in charge of the Bliss. The ruling, therefore, that negligence on the part of those in charge of the Bliss, other than the plaintiff, would not defeat the plaintiff’s action, although contributing to the injury was erroneous. No note is here taken of the ruling as to the negligence of those having charge of the steamtug “ Stone ; ” nor as to some rulings on questions of evidence, to which exceptions were entered. The conclusion above reached renders an examination of those rulings unnecessary.
Judgment should be reversed, new trial granted, costs to abide the event.
Present — Learned, P. J., Boardman and Bocees, JJ.Judgment and order affirmed, with costs.