Opinion
June Term, 1897.
Edward C. James and Abram I. Elkus, for the appellants.
Joseph Larocque, for the respondents.
It is urged that the defendants have violated the statute by employing the plaintiff as a rider, jockey and stable boy, and consenting to his acting as such, or by neglecting or refusing to restrain him from acting as such, the claim being that as he was in their employ it was their duty, under the provisions of the statute, not to permit him to ride, and that, therefore, they are liable for the damages sustained by him while so employed.
If the evidence showed that, while riding one of the defendants' horses, or with the knowledge and by the direction of the defendants, while riding Crosson's horse, the plaintiff was injured, then, upon the other facts appearing, we think, irrespective of the statute, there would have been a question for the jury. For it appears that the boy mounted with reluctance, and, after galloping, expressed his fear of the horse, and was compelled to ride by Cooper, who, standing with a cane or stick in his hand, stated that he would knock him off if he did not ride the horse. Such conduct on the part of Cooper, in compelling the plaintiff to accept and continue in a dangerous employment by force or fear, was sufficient to fix a liability on Cooper and on defendants, if Cooper, in what he did, was acting within the scope of an authority conferred by defendants. If, however, Cooper was not the alter ego of the defendants, or was not acting as their agent in what he did, it is difficult to assign any principle upon which defendants are to be held liable for injuries received by plaintiff while riding a horse in which defendants had no interest.
In this connection, it is important to recall just what Cooper's position was. The plaintiff testified that he was employed by Cooper, and that Cooper was employed by the defendants. In addition, we have but the pleadings to show just what was the extent of Cooper's authority. The complaint alleges that these "defendants employed or caused to be employed the infant plaintiff." And the answer is that they employed "a proper person as trainer, to whose charge the management of such horses as these defendants desired to have trained for racing was confided, who, in the course of his employment, selected and employed jockeys and stable boys to ride said horses," one of whom, they are informed and believe, was the plaintiff. It will thus be noticed that Cooper's employment was the training of such horses as defendants confided to him, and he on his part employed the stable boys. In was, therefore, entirely competent, for aught that appears to the contrary, for Cooper to train other horses besides those of the defendants, or, as in this instance, to train Crosson's horse. Undoubtedly, if Cooper was not an independent contractor, but was in the general employment of the defendants, by whom he was given authority to employ stable boys and jockeys, then there might be some force in the suggestion that, in directing the boys as to what they should do, he was within the general scope of his employment, and that it was not for the boys to question his authority, and that for what they did for Cooper, presumably acting for the defendants, the latter could be held liable.
We fail, however, to see upon what principle a boy employed by Cooper, though part of his duties consisted in exercising the defendants' horses, confided to Cooper for training, when injured while riding, under Cooper's directions, a horse in which the defendants had no interest whatever, can recover from them for such injuries. Although illustrations as a rule are dangerous, it may serve to present our views in a clearer light if we take one presenting some of the features and illustrating the principle which is here applicable.
If a manufacturer using machinery employs a foreman and employees to work on such machinery, and the foreman, without the knowledge or consent of the master, should direct one of the employees to go into a factory belonging to another person and work on a defective machine, and the employee, while so working, is injured, would the master be liable? True, the foreman had authority in the factory of the master, but would that make the master liable for injuries resulting from an unauthorized act of the foreman in sending the employee into another man's factory to work on dangerous machinery? Here Cooper was employed by the defendants to train such horses as they confided to his care, and the testimony shows, as the answer admits, that the plaintiff was employed by Cooper. But there is nothing to show that his employment was solely limited to riding the defendants' horses, or that he was employed by Cooper for that exclusively. The plaintiff was injured, not in riding one of the defendants' horses, but in riding by direction of Cooper, his master, a horse belonging to Crosson, without the knowledge or assent of the defendants, and Cooper, in ordering the plaintiff to ride Crosson's horse, cannot by any stretch of the pleadings or evidence be held to have instructed him to do anything which in any way could be regarded as done for the defendants. Nor could the plaintiff have understood that it was done for the defendants, because he admits that he had seen the horse on previous occasions at West Farms, and knew it belonged to Crosson who on the day in question had brought it to the track, and for whom Cooper directed the boy to ride.
If, however, upon any view, a jury could infer that Cooper was in complete charge and control of a stable of horses belonging to the defendants, and had authority to employ stable boys for them to exercise their horses, and had without their authority or consent forced the plaintiff to ride a horse which he knew did not belong to the defendants and that the plaintiff was thus injured, then would be presented a case similar to the illustration of a foreman who without authority compelled an employee to enter upon a work which the latter well knew was not one in which the master had any concern, and for injuries suffered in which the master could not be responsible.
Without considering the other grounds, we think, upon the pleadings and the proof, the complaint was properly dismissed, and the judgment should be affirmed, with costs.
VAN BRUNT, P.J., RUMSEY and INGRAHAM, JJ., concurred; PARKER, J., dissented.
Judgment affirmed, with costs.