Spelman v. Fisher Iron Co.

By the Court, Bocees, J.

On careful analysis and fair

reading of the complaint, it stands averred, as I think, 1st. That the company furnished the powder for use in its ordinary and appropriate business. 2d. That its superintendent directed its use by the plaintiff in such business. 3d. That it had never been tested as an explosive in blasting, and was, in fact, unfit and unsafe for such use; and 4th. That the plaintiff was ignorant of its dangerous properties. If correct in thus reading and construing the averments of the complaint, a right of action is unquestionably stated. It was held in Wright v. The N. Y. Central Railroad Co., ( 25 N. Y. Rep. 562 ,) that the master is liable to his servant for injuries to the latter occasioned by reason of furnishing for the work to be done by him, or for his use, implements and facilities improper and unsafe for the purpose for which they were to be applied; that is, in case the employer knew, or ought to have known, of the defects which caused the injury, and the servant was ignorant of them. The authorities bearing on this subject, and supporting this proposition, are collected in the case cited, and here require no particular comment.

The rule is clearly established, and settles the question of liability in this case against the defendant, on the facts averred in the complaint. The risk of personal injury in blasting, with the ordinary appliances used for that purpose, the plaintiff assumed, under his contract with the company to labor in that employment; but not those risks attendant upon the use of an unusual, untested and exceedingly dangerous article, which could not be tamped without inevitable explosion; the dangerous quality of *166 which was unknown to him. It was gross negligence in the company to furnish such an article for the laborer’s use, without giving him information in that regard. Certainly this was so in case .the company was aware of its dangerous quality; and the culpability was little lessj in fact, and none in law, in case the new explosive was furnished for use without having taken any steps to obtain such knowledge.

It is insisted that there is no averment that the powder was furnished by the company. On first view it seemed to me that this objection was well taken. But after careful examination of the complaint, I am led to a different conclusion. It is averred that Hall was the managing agent and superintendent of the company; that the powder for blasting was furnished by the company through him, and that he furnished this unusual and unsafe article to the plaintiff for use. These allegations of fact are equivalent to a direct and simple averment that the defendant furnished the powder to the plaintiff for use. Hor is this changed in its legal import and effect by the allegation that the agent, when he directed its use.by the plaintiff, informed the latter that he wished to test it for blasting purposes, assuring him that it could be employed with perfect safety.

The directions and assurances of the managing agent and superintendent were those of the company. The company could only act in these regards through duly constituted agencies; and even if the general and managing agent had no such authority in fact as he assumed to exercise, yet inasmuch as his acts came within the general scope of his powers and duties, the company was bound by them, in the absence of any notice to those with whom he dealt, that he was acting in his own behalf, and not in the business of his principal. So it follows that in this case the negligence and misconduct of the managing agent was the negligence and misconduct of the company, in its strictest sense. *167 The agent, as must be assumed from the averments in the pleading, was acting in exact accordance with directions given by the company. As regards the company, his principal, he was doing no wrong. He was simply obeying instructions. Having, in fact and in law, authorized and directed the act, it does not lie with the company to deny all liability to a servant, innocent of blame, who should suffer injury therefrom. In this view it is not the case of an injury occurring through thé negligence or misconduct of a fellow servant, for which the principal is not liable in law. Where the principal authorizes and directs it, the misconduct is his, and he is not discharged from liability to his servant who is injured thereby, because he employed another servant as an instrumentality in carrying his purpose into effect.

[Schenectady General Term, April 5, 1870.

Nor does it appear from the complaint in this case, that there was contributory negligence on the part of the plaintiff. For anything that is alleged in the pleading, he acted with due caution. He inquired, and was informed that the new explosive was a safe article to be used in his business of blasting. He had a right to rest on this assurance from his principal, who furnished it and directed its use.

In my opinion, the order directing judgment for the plaintiff on the demurrer was right, and should be affirmed, with $10 costs of appeal, and disbursements.

Order of special term affirmed, with $10 costs, and disbursements. But with liberty to the defendant to withdraw the demurrer, and answer the complaint within twenty days after service of the order of affirmance, on paying the costs of the demurrer and the costs of appeal.

Rosekrans, Potter, Bockes and James, Justices,)