Sherman, adm'x, &c. vs. The Rochester and Syracuse Railroad Company, 15 Barb. 574

By the Court, Welles, J. The action is brought to recover damages for an injury to the plaintiff’s intestate which produced his death. The statute, under which the action is sought to be maintained, provides that “ whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default, is such as would, (if death had not ensued? have entitled the party injured to maintain an action and, recover damages, in respect thereof, then and in every such case, the person who, or the corporation which would have been liable, if death had not ensued, shall be liable to an action for damages,” &c. (Laws of 1847, ch. 450, ,§ 1.) The second

section of the act provides, among other things, that such action shall be brought by and in the names of the personal representatives of such deceased person, &c. This 2d

section was after-wards amended, by limiting the recovery in such action to an amount not exceeding $5000. (Laws of 1849, ch. 256, § 1.) This case must therefore be decided, the same as if the plaintiff’s intestate had survived the injury, and the action had been brought in his name.

The complaint among other things states in substance that Sharon Sherman, the intestate, at the time of the injury complained of, was. in the employ of the defendants for hire, in the capacity of a brakeman, and charged with thé duty and responsibility of applying the brakes to certain of the defendants’ cars when in motion on the railroad, as he should, by signals, be directed by other agents or officers of the defendants’ train of cars, for the purpose of regulating the velocity of such trains.

That he was required by his duty as such brakeman, in pursuance of the instructions of the defendants, to ride upon the cars, and obey the directions of superior officers of said defendants, and had no right to interfere or change the velocity of such trains, unless so directed by the proper officers.

That on the 5th day of July, 1852, the defendants’ mail train of cars left Rochester on its way east, at the hour appointed by the defendants for that purpose; upon which it became and was the duty of said Sharon Sherman to go and officiate in his capacity of brakeman; and that he was upon said train in the discharge of such duty, when the train, as it approached a place between.

Canandaigua and Shortsville, where the defendants had previously caused a large quantity of wood to be piled on each side of, and immediately contiguous to the track of the railroad, leaving just room for the cars to pass, had by, the carelessness and negligence of the defendants, and without any fault or negligence of said Sherman, been suffered to obtain the unusual and dangerous rate of speed of about eighty miles to the hour, at which rate the train was suffered to enter the space between the piles of wood and to run against a cow or ox then there being, by means whereof one or more of the cars was violently thrown from the track, and that the said Sherman was then and there, by means of the culpable negligence and carelessness of the defendants, thrown from the train, while he was, without any fault on his part, discharging his duty, into and upon one of the said .piles of wood, with such violence as to cause his death on the 8th day of said month of July.

Assuming that the carelessness here complained of, was that of the agents or servants of the defendants, other than that of the plaintiff’s intestate, the action cannot be sustained. It was decided by the court of appeals of this state, in the late case of Coon v. The Syracuse and Utica Railroad Co. (1 Seld. 492,) that an employer is not liable to one of his agents or servants for the negligence of another of his agents or servants, engaged in the same general business. The same principle had been previously decided in England, in South Carolina, and in Massachusetts. (Priestly v. Fowler, 3 Mees. & Welsh. 1.

Murray v. & Carolina Railroad Co. 1 McMullan, 385. Farwell v. B. and W. Railroad Co. 4 Metc. 49.) In such case, the doctrine of respondeat superior does not apply. The law may now be considered too well settled, upon authority, to admit of discussion or contradiction. I think it must be intended from all the allegations in the complaint, that the injury to the deceased was caused by the negligence and carelessness of the servants or agents of the defendants. It consisted in allowing the train to attain and continue the unusual and dangerous rate of speed mentioned.

Ho defect in the engine or machinery, or in the cars or the road is alleged; nor is it charged that there was any want of capacity in the engineer, conductor or other person, engaged in running the train, or defect in their general character for carefulness or attention to their duties ; and no complaint is made that there was any thing wrong in piling the wood in the road as described. The complaint states that the speed was regulated, in part at least, by the application of the brakes according to the direction, by signals, of other agents or officers of the defendants.

It is nowhere intimated, nor can it, with any propriety, bo inferred from any thing stated in the complaint, that the dangerous velocity of the train, at the time referred to, was directed by the defendants in their corporate character. The complaint does state, that the train had attained this dangerous speed by the carelessness and negligence of the defendants; but it is not stated how the defendants, as a corporate body, were guilty of such negligence, which could only be, by a formal resolution of the board of directors, duly convened, directing the act complained of to be done.

This, it will hardly be contended, would be a just inference. I do not intend to assert that the corporation as such, could not, without the act of the board of directors, be guilty of neg-ligence in the absence of any fault of their agents or servants, in the case of an omission to do what their duty to the community or persons in their employment required. In such a case, the gist of the complaint would be the culpable omission of the board to take the requisite action.

But where an affirmative act is complained of, as in the case at bar, the only way in which the corporation can be liable, in an action on the case, is, either by their organized action through the board of direction, or for the acts of their agents on the principle of respondeat superior. It was not attempted upon the argument to put the plaintiff’s right to recover on any other ground than the negligence of the defendants’ agents. Upon that ground the question was fairly met by the counsel, who sought to sustain the complaint upon' the doctrine of respondeat superior alone.

In that view, we think the law is settled against the plaintiff, by the cases referred to, which cannot he distinguished in principle from the present. . [Monroe General Term, September 5, 1853. Walks, Saldan and T. R. Strong, Justices.] We are therefore of the opinion that the defendant is entitled to judgment' on the demurrer, with leave to the «plaintiff to amend the complaint on payment of costs.