Keegan against The Western Railroad Company, 1 Seld. Notes 44

The plaintiff obtained a judgment, in the Supreme Court, for injuries sustained by him from the explosion of the boiler of a locomotive engine, on which he was employed by the defendants as a fireman. The boiler was defective and dangerous; and its condition in this respect was and had. for some time been known to the defendants, through the reports of the engineer, made on several different occasions, which were entered on the books of the defendants kept for that purpose, and the injury to the plaintiff resulted from the improper conduct of the defendants in using the engine thus known to be defective.

The judgment was affirmed. It was held that the cases deciding that a principal is not liable to one agent or servant for an injury sustained by him in consequence of the negligence of another agent or servant engaged in the same general business, were not applicable to this case. That they apply only where the injury happened without any actual fault of the principal, either in the act which caused the injury, or in the selection and employment of the agent by whose fault it happens.

It was insisted, on the part of the defendants, that the plaintiff knew the condition of the boiler, and, therefore, took the risk upon himself. His knowledge of its dangerous condition was not “found as a fact by the referee” before whom the cause was tried, though there was evidence in the case tending to prove it; and, in the absence of such finding, if the fact was material, this court could not examine the evidence to ascertain whether it was sufficiently proved. (S. C., 8 N. Y. 175.)