The principle relied upon by the defendants, that a master is not liable to a servant for an injury to him occasioned by the misconduct or negligence of a fellow-servant, has been so often recognized both in this country and in England that it must now be considered as settled law. Two reasons are usually assigned for the rule; 1st. That the employed must be supposed to have contracted with reference to the perils of the business, including those which may arise from the character and conduct of his fellow employees ; and 2d. That public policy requires that each servant should be influenced by its operation to be not only careful of his own doings, but as watchful as possible over the acts of his associates. Farwell v. Boston & Worcester R. R. Co., 4 Met., 49.
The justness of this reasoning has been questioned by high judicial authority. Little Miami R. R. Co. v. Stevens, 20 Ohio, 435. However plausible may be the theory, it is very doubtful whether, in fact, a - spinner in a factory or a fireman on a railroad ever made an examination into the *480condition of the machinery, the mode of conducting the business, or the character and habits of the operatives, for the purpose of ascertaining the extent of his risk, as an element in calculating the proper amount of his wages. A passenger in a railroad car may well be presumed to have a vivid consciousness of his risk, but it has never been understood that he contracts with reference to it when he buys his ticket, so as to be his own insurer. Again, a principal is responsible to an employee for his own negligence, — why should he not be liable for that of his agent over whom the employee has no control, and of whom he may have no knowledge ?
With respect to considerations of policy, it is by no means certain that the public interest would not be best subserved by holding the superior, with his higher intelligence, his surer means of information, and his power of selecting, directing, and discharging subordinates, to the 'strictest accountability for their misconduct in his service, whoever may be the sufferer from it.
But accepting the law as established, and as assented to by the parties, we are led to inquire whether the defendants have not had the benefit of it in the charge of the court. The defendants, outside of their regular business, had engaged in discharging coal from the holds of vessels. O’Neil, an employee in their ordinary business, was acting under a special contract with them to raise and drop the coal. He employed Burke. The defendants requested the court to charge that if Burke was employed in the same general business as O’Neil, and the company had the control of him (Burke), and could discharge him when they chose, he was to be considered as their servant, and they were not liable.
The charge was substantially as proposed. The court said, “ If Burke was an employee of the railroad company the plaintiff cannot recover. I leave it. to you upon all the evidence as a question of fact, to say whether Burke was so in the employ of O’Neil as aii independent contractor, or in the employ of the company in their business. Had the company the control of him ? Could they discharge him without breaking their special contract with O’Neil. If they could, *481or O’Neil was their agent in employing him, then he was in their employ, and the plaintiff cannot recover.” It is difficult to see wherein the charge differed from that which was requested by the defendants, or wherein they could have been injured.
It was conceded by the counsel for the plaintiff, that if the relation of master and servant existed between the company and Burke, the action would not lie. The real question was one of fact, whether that relation existed; and even if on this motion we could inquire into the weight of the evidence, we should have no doubt of its sufficiency to sustain the verdict. In discharging the coal O’Neil was working under a particular agreement, in a business entirely distinct from his regular employment, and for a separate compensation. In this respect he was an independent .contractor. He alone employed, paid, controlled, and could discharge, Burke. The pay of O’Neil did not depend upon the wages of Burke. O’Neil was paid by the ton ; Burke may have been hired by the day or the job. Burke was unknown to the company and his name did not appear on their rolls. He was considered and treated by all parties as in the employment of O’Neil, and not of the company. He was neither in law nor in fact the servant of the defendants.
In the case of Kelly v. The Mayor &c. of New York, Kernan, 432, Judge Selden, a very eminent jurist, says, speaking of a contract, “ The clause in question clearly gave the corporation no power to control the contractor in the choice of his servants. That he might make his own selection of workmen will not be denied. This right of selection lies at the foundation of the responsibility of a master or principal for the acts of his servant or agent. As a general rule no one can be held responsible as principal who has not the right to choose the agent from whose acts the injury flows.” See also Corbin v. The American Mills, 27 Conn., 274. In 1st Redfield’s Law of Railways, 506 (ed. of 1867), the general principle is laid down that one is liable for the act of his servant, but not for that of a contractor or the servant of a contractor. A long list of authorities is there collected bear*482ing upon the question involved in this case. See also American Leading Oases, with Hare and Wallace’s notes, 648. It will be noticed that in most of the cases the question has not turned so much upon the legal principles as on their application to the facts of the particular case. This is especially true in- the case of Wiggett v. Fox, 36 Eng. Law & Eq. R., 486, so much relied upon by the defendants. .. A new trial is not advised.
In this opinion the other judges concurred.