Cray v. The Philadelphia & Reading Railroad Company.

gaged in a joint enterprise with him, could not recover, if they found that the engineer's negligence contributed to the collision. This instruction was refused, and the refusal is now assigned as error for which a new trial should be granted.

The instructions given were certainly as favorable for the defendant as could reasonably be required. Although the plaintiff was a fellow-servant of the engineer, he was a subordinate, and had no control over the movements of the locomotive. If he was not guilty of any personal negligence, and did not countenance the negligent conduct of his fellow-servant, upon reason, and according to the weight of authority, he ought not to be precluded from a recovery against the defendant. If he could maintain an action against his fellowservant and the defendant jointly, he can, at his election, pursue either severally. Upon the facts found by the jury, he was no more accountable for the misconduct of the engineer than a passenger would be, or than the owner of a cargo would be, for the negligent acts of the carrier whom he has employed to transport his property. If he had occupied such a relation to the transaction, he could recover against either or all of the offenders whose acts contributed to his injury. (The Atlas, 93 U. S., 302; The Washington and The Gregory, 9 Wall., 513; The Titan, ante, p. 177; Eaton v. Boston & Lowell R. R. Co., 11 Allen, 500; Webster v. Hudson River R. R. Co., 38 N. Y., 260; Barrett v. Third Av. R. R. Co., 45 N. Y., 623; Spooner v. Brooklyn City R. Co., 54 N. Y., 230; Lockhart v. Lichtenthaler, 46 Penn. St., 151. See Town of Albion v. Hetrick, 90 Ind., 545; Wabash R. Co. v. Shacklet, 105 Ill., 364; Cuddy v. Horn, 46 Mich., 596.)

The defendant relies upon the English cases of Thorogood v. Bryan, (8 C. B., 115,) and Armstrong v. Lancashire & Yorkshire R. R. Co., (10 Exch., 47.) In Thorogood v. Bryan it was held, that the plaintiff, an ordinary passenger in an omnibus, injured by the joint negligence of the driver of the omnibus and of the defendant, must be taken to be

Cray v. The Philadelphia & Reading Railroad Company.

identified with the driver of the omnibus, and, if want of care on the part of the driver of the omnibus conduced to the accident, the plaintiff could not recover against the defendant. This ruling has been generally criticised, and its correctness repudiated, by text-writers of authority, and is in plain conflict with the great preponderance of judicial opinion in this country. The case of Armstrong v. Lancashire & Yorkshire R. R. Co. was decided upon the authority of Thorogood v. Bryan.

In Robinson v. N. Y. C. & H. R. R. R. Co., (66 N. Y., 11,) it was held, that a person who accepts an invitation to ride with another competent to control the vehicle is not chargeable with his negligence, and contributory negligence upon his part is no defence, in an action against a third party for injuries resulting from a collision; and that, if the plaintiff was free from negligence, although the driver might have been guilty of negligence which contributed to the injury, the action could be maintained. Church, C. J., in delivering the opinion, said: "It is no excuse for the negligence of the defendant, that another's negligence contributed to the injury, for whose acts the plaintiff was not responsible,"

In Dyer v. Erie Railway Co., (71 N. Y., 228,) it was held, that where one travels in a vehicle at the invitation of the owner or driver, over whom he has no control, no relationship of principal and agent exists between them, and he is not responsible for the negligence of the driver, and contributory negligence on the part of the driver is not imputable to the passenger, and is no bar to a recovery against a negligent third party, for injuries resulting from a col

lision.

The reasoning in both of these cases proceeds upon the ground, that the negligence of one person is not to be imputed to another merely because both of them are engaged in a common enterprise, when the latter has no control in fact, or by reason of superior authority, over the conduct of the former. It is otherwise where they are engaged in an en

Cray v. The Philadelphia & Reading Railroad Company.

terprise the character of which presupposes conjoint management, and, therefore, mutual responsibility for each other's acts, as in Beck v. East River Ferry Co., (6 Robt., 82.)

It is not apparent how the circumstance that the persons engaged in the common enterprise are fellow-servants can qualify the application of the principle to be deduced from these cases. That circumstance is important only as it bears upon the question of the employer's responsibility to one servant for the negligence of a fellow-servant. As between themselves, the servants of a common employer are liable to each other for negligence precisely as though the relation of fellow-servant did not exist. The cases in Massachusetts holding otherwise are generally disapproved by the commentators. (Shearman & Redfield on Negligence, sec. 112; Wharton on Negligence, sec. 245; 2 Thompson on Negligence, 1,062. See, also, Hinds v. Harbou, 58 Ind., 121.) The exemption of the employer from liability to a servant for the negligence of a fellowservant rests upon the implied undertaking of the servant to assume the risks necessarily incident to the service in which he engages, including the risk of the negligence of his fellowservant in discharging duties which the employer cannot be expected to discharge personally. There is no reason why a third person, with whom there is no such implied undertaking, should be entitled to avail himself, as a defence to his own negligence, of the contributory negligence of a fellow-servant of the injured party, any more than of the contributory negligence of a stranger. As to him, personal negligence on the part of the injured party would seem to be the only just criterion of contributory negligence. In the case of Paulmier v. Erie R. R. Co., (34 N. J. Law, 151,) it was held, that a servant injured by the combined negligence of his master and of a fellow-servant could recover against the master, upon the ground that the master was one of two joint wrong-doers, and, as such, responsible to the servant. It would follow, as a corollary, that it does not lie even with an employer to insist that the contributory negligence of one servant can be imputed to a fellow-servant, as a defence to the employer's

The Columbia,

negligence. Certainly, a stranger cannot occupy any better position than the employer.

There are two adjudications in this State opposed to the doctrine of Armstrong v. Lancashire & Yorkshire R. R. Co. -Perry v. Lansing, (17 Hun, 34;) Busch v. Buffalo Creek R. R. Co., (29 Hun, 112.) In both of these cases it was held, that a defendant whose negligence contributed to the injury of an employé could not escape liability because the negligence of a co-employé of the plaintiff also concurred. This is believed to be sound law.

The motion for a new trial is denied.

Parker & Countryman, for the plaintiff.

Mitchell & Mitchell, for the defendant.

THE COLUMBIA.

Two steam vessels, A. and B., were approaching each other on crossing courses. A. had B. on her starboard side. A. claimed that she gave a signal of two whistles, which was not answered by B., but A. did not stop. B. claimed that, before A. gave any signal, B. gave a signal of one whistle, to which A. did not respond; that then B. gave another signal of one whistle, to which A. did not at once reply, but kept on, and then gave a signal of two whistles; and that B. then gave a signal of three whistles, but did not stop. A collision ensued, injuring A.: Held, that both vessels were in fault.

The damages to A. were equally apportioned by this Court, and, B. having been held by the District Court not to be in fault, the costs of that Court were, by this Court, apportioned equally, and the costs of appeal were given to A.

(Before BLATCHFORD, J., Eastern District of New York, July 8th, 1885.)

THIS was an appeal by the libellants in a suit in rem in the District Court, in Admiralty, for a collision, from the

The Columbia,

decree of that Court dismissing the libel. (8 Fed. Rep., 716.)

Owen & Gray and F. D. Sturges, for the libellants.

B. D. Silliman and N. P. Schenck, for the claimant.

BLATCHFORD, J. It is contended for the Baxter, that the evidence shows that the Baxter gave a signal of two whistles; that the Columbia answered by a signal of three whistles; that the Baxter then gave a signal of five or six sharp blasts, followed by a signal of two whistles; that the Columbia answered with a signal of three whistles; that the Baxter then gave a signal of two whistles; and that the Columbia answered by a signal of three whistles. This concurs substantially with the statement of the libel, that the Baxter gave a signal of two whistles; that the Columbia answered by a signal of three; that the Baxter then gave a signal of several sharp and distinct blasts, and then a signal of two whistles; that the Columbia paid no attention to such signal, and, although it was repeatedly given, disregarded it and kept on.

As the vessels approached each other, the Baxter had the Columbia on her starboard side and their courses were crossing. On the view that it thus became the duty of the Baxter to avoid the Columbia, the District Judge held that the Baxter would have avoided the Columbia if she had stopped when she saw the approach of the Columbia; that the excuse made by the Baxter for not stopping, namely, that she could not do so without incurring the danger of being run over by her tow, was not satisfactory; and that she could have stopped and even backed away without being run over by her tow. For this fault, among others, the Baxter was condemned. I concur in this view. Especially was it the duty of the Baxter to stop and back, if her signal of two whistles was not, when first given, answered affirmatively, and promptly, by the Columbia.

For the Columbia it is contended that, before the Baxter