Tivnan v. Keahon

117 A.D. 50, 101 N.Y.S. 1076, 1907 N.Y. App. Div. LEXIS 188

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 11, 1907
• Status: Published

Opinions

McLaughlin, J.:

On the 13th of August, 1901, the plaintiff went to work at defendant’s livery stable, having been employed to perform the duties usually devolving upon laborers in such establishments, by Daniel Eeahon, defendant’s brother, through whom.the business was conducted. Some two weeks later, following the instructions of Daniel . Eeahon, plaintiff lighted a gas engine in the' basement of the building and a few minutes thereafter, with three other employees, started the engine, and in doing so received the injuries complained of, which necessitated the amputation of an arm.

The evidence is sufficient to sustain the finding of the jury that the danger attendant upon- the work of starting the engine necessitated the giving of special instructions to one delegated to perform it, and that lacking such instructions, plaintiff carried out his orders as would a reasonably prudent man.

The judgment appealed from must be affirmed unless it be held that the act of Daniel Keahon in directing the plaintiff to assist in starting the engine was that of a coservant. The complaint alleges: “ 1. That on or about the 13th day of August, 1901, and at the times hereinafter mentioned, defendant was the owner and proprietor of a boarding stable at Humber 108 and 110 Tenth Avenue, in the City of Hew York, Borough of Manhattan, and conducted the same through his brother Daniel Keahon, who was the manager and superintendent thereof, and that on or about said 13th day of August, 1901,- said defendant, through the aforesaid Daniel .Keahon, employed plaintiff at a salary to work at said stable.” The answer admits this allegation, which establishes that Daniel Keahon, so far as the management of the business was concerned, was the alter ego of the defendant. Indeed, if the defendant had testified at the trial to the relation which Daniel Keahon bore to him it is difficult to imagine in what way he could have more clearly and concisely stated facts which would have made the latter his alter ego in the entire management of the business.

Whatever apparent discrepancies exist in reported decisions in the disposition of cases arising under circumstances somewhat similar to the one under consideration have been caused by the varying character of the acts of the representatives rather than by any repudiation of the doctrine that the master is liable for any faults of omission or commission by the person .or persons acting for him. This apparent discrepancy or misconception results probably from the, fact that there is usually embodied in the alter ego a dual character, (1) that of the servant whose duties among those put.upon the other employees in the prosecution of the business is certain and fixed; and (2) that of the representative of the master, in which capacity there exists greater and a more undetermined latitude of authority.

But a master cannot, by delegating to another the diity which rests upon him, of furnishing his employees with a reasonably safe place in which to work and reasonably safe and suitable tools, iiirplements, appliances -and machinery with which to do his work, excuse himself from liability (Eastland v. Clarke, 165 N. Y. 420; Benzing v. Steinway & Sons, 101 id. 547; Stringham v. Stewart, 100 id. 516; Pantzar v. Tilly Foster Iron Mining Co., 99 id. 368) any more than lie can excuse himself from the duty which devolves upon him to instruct a servant theretofore unskilled'to operate 'dangerous machinery. (Brennan v. Gordon, 118 N. Y. 489; Strauss v. Haberman Mfg. Co., 23 App. Div. 1; Fox v. Le Comte, 2 id. 61; affd., 153 N. Y. 680.) The rule which exempts a master from liability for- .the negligence of one to whom, he has delegated the power to conduct a business enterprise, or a branch of it, is based1 upon the theory that the' negligence of the person acting for the master is the act of a servant having no authority except to properly discharge the duties assigned to him, and not the act of the master. But this rulé does not apply to the question here presented,- because Daniel Kealion’s act in directing the plaintiff to start the engine, as. well as in his failure to give- instructions as to the danger in doing so, was that of the master. Great danger was ‘ to be encountered in starting the engine unless started in a proper way. This was known to the master, but unknown to the servant. Therefore, the former was obliged to make known such fact to the latter, and to instruct him as to the proper manner of starting the engine, to the end that such danger might be avoided. (Brennan v. Gordon, supra.)

This obligation rested upon Daniel Keahon, because he had been intrusted by the defendant with the management of the business, and in this respect was his alter ego (Corcoran v. Holbrook, 59 N. Y. 517), and for his failure to properly discharge his duties as such, defendant is liable.

. The judgment and order appealed from must be affirmed, with, costs.

Patteeson, P. J., and Laughlin, J,, concurred ; Houghton and Scott, JJ., dissented.