have been pursued, as the jury might have found, as well as the general principles of law applicable to such cases, we think it follows that the learned trial judge should have submitted the case to the jury. While they might have found for the defendant if they believed him and his witnesses; if, on the other hand, they believed the plaintiff and his witnesses, they might have found that the defendant was guilty of negligence 211 in omitting to reduce the swelling so that a safe diagnosis could be made; in failing to discover that the real nature of the injury was a broken patella instead of a rupture of the ligaments; in omitting to place the broken parts in apposition, and to keep them there with proper appliances, and by taking proper precautions as to quiet for a sufficient length of time to bring about the best result; in dressing and flexing the leg without adequate care to keep the broken bones together, and in telling the plaintiff to flex it, without proper instructions to that end; in permitting the plaintiff to use his leg too soon and in a hazardous manner, and in assuring him that his knee was getting along all right and that he would have a good leg, and thereby preventing him from securing other medical treatment. They might also have found that such negligence injured the plaintiff by preventing a better recovery, which would lead to an assessment of damages.

We think there were questions of fact for the determination of the jury, and that, for the error in directing a verdict, the judgment should be reversed and a new trial granted, with costs to abide the event.

All concur, except Bartlett, J., dissenting, and Gray, J., sent.

ab

PHYSICIANS AND SURGEONS-CARE AND SKILL REQUIRED OF-LIABILITY.—A surgeon employed professionally to treat an injury is bound to use in his treatment a reasonable, ordinary degree of care and skill of the profession in his community, but he does not undertake to use the highest degree of care or skill, nor, in the absence of a special agreement, to perform a cure: Lawson v. Conaway, 37 W. Va. 159; 38 Am. St. Rep. 17, and note; Force v. Gregory, 63 Conn. 167; 38 Am. St. Rep. 371, and note. A physician or surgeon does not warrant a cure, and is not responsible for failure, unless it results from negligence or want of skill such as he is required to possess and exercise: Patten v. Wiggin, 51 Me. 594; 81 Am. Dec. 593, and note. Nor does a failure to effect a cure raise a presumption of want of proper skill or diligence: Lawson v. Conaway, 37 W. Va. 159; 38 Am. St. Rep. 17. See Howard v. Grover, 28 Me. 97; 48 Am. Dec. 478, and monographic note. But he is liable for damages arising as well from want of skill, as from the want of application of skill: Long v. Morrison, 14 Ind. 595; 77 Am. Dec. 72; Du Bois v. Decker, 130 N. Y. 325; 27 Am. St. Rep. 529, and notes.

PARK v. NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY.

[155 NEW YORK, 215]

MASTER AND SERVANT-INJURY TO ONE SERVANT FROM THE NEGLIGENCE OF ANOTHER.-A master is not liable to his servant for injuries resulting from the negligence of a fellow-servant, unless the latter was incompetent and unfit for the service, and this was known, or should have been known, to the master.

MASTER AND SERVANT-INCOMPETENCY OF FELLOW-SERVANT-GENERAL REPUTATION AS EVIDENCE OF. Where it is claimed that a fellow-servant, through whose negligence the plaintiff received injury, was incompetent and unfit for the duties he undertook to perform, such incompetency and unfitness cannot be proved by evidence of his general reputation. His incompetency must be shown by specific acts of the servant, and it must further appear, to fasten liability on the master, that he knew, or ought to have known, thereof. This knowledge may be shown by evidence tending to establish that such incompetency was generally known in the community.

MASTER AND SERVANT, EVIDENCE TO ESTABLISH THE INCOMPETENCY OF A FELLOW-SERVANT.-Evidence that some eight or ten years prior to the accident in which plaintiff was injured, as he claimed, through the negligence of an incompe tent fellow-servant, that such fellow-servant was called "Crazy Brown," is incompetent and prejudicial.

Frank Hiscock, for the appellant.

Louis Marshall, for the respondent.

217 HAIGHT, J. This action was brought by the plaintiff, who was an engineer in the employ of the defendant, to recover for injuries sustained by reason of the collision with a freight train, caused by the negligence of one Brown, a brakeman in the employ of the defendant.

The freight train on the evening of November 21, 1891, had been switched from its regular track to the east-bound passenger track near Canastota, and had proceeded eastward a little over a mile from that station when it became stalled and the train broke in two, leaving the rear portion of the train stationary at a point about eight hundred feet east of the end of a curve. Sanford Brown was the rear brakeman upon the train, and it then became his duty to go back upon the track and signal the approaching train so as to prevent a collision. The plaintiff was following upon the mail and express train, known as No. 32, and it is claimed that Brown neglected to go back a sufficient distance from his train to give the signals required to prevent a collision, and that owing to his neglect of duty in this regard,

a collision occurred in which the plaintiff suffered the injuries for which this action was brought.

Inasmuch as the plaintiff and Brown were coservants this action could not be maintained without showing that Brown was an incompetent man, unfit for the service in which he was engaged, and that such incompetency was known, or should have been known, by the officers of the defendant. It appears that he was thirty-five years of age and was born at Corinth, Saratoga county, in this state. That from early boyhood he had lived in the city of Schenectady and attended the union school at that place, and in 1881 entered the employ of the New York Central and Hudson River Railroad Company and ran upon a train as a brakeman, between West Albany and De Witt, for a period of about two years. After this he entered the employment of Saul & Davis, in Syracuse, hardware 218 merchants, for a time, and then again entered the employ of the New York Central and Hudson River Railroad Company under a Mr. White, the master mechanic at Syracuse. He served as an accountant and assistant bookkeeper for about three years and six months, after which he went to Louisville in the state of Kentucky, and entered the service of the Louisville & Nashville railroad as brakeman. He then became yard clerk, and after that service clerk and detective for the road. In 1890 he returned to this state, and again entered the employ of the defendant as extra conductor and served about seven months. He then returned to Louisville, and in August, 1891, returned to this state and was employed as a flagman, and continued in such employment down to the time of the accident.

The plaintiff, in order to establish his cause of action, gave considerable evidence with reference to the general reputation of Brown for carelessness, which was taken under the objection and exception of the defendant, which we shall not consider in detail. The character of this evidence has recently been under consideration in this court in the case of Youngs v. New York etc. Ry. Co., 154 N. Y. 764. Inasmuch as there was no opinion written in that case we will briefly allude to the facts and the question decided. In that case, as in this, it became necessary to show that an employé was incompetent. This the plaintiff sought to do by showing his general reputation for carelessness from the speech of people. It was objected to by the defendant; the objection was sustained and an exception was taken by the plaintiff. The court then stated to the plaintiff's attorney, "I will allow you to show any specific acts of negligence on the

part of the engineer while engaged in the business of engineer ing, and I will allow you to show that those acts of carelessness were generally known in the community, and that the defendant had actual knowledge of such specific acts, or that they were so general that, upon proper inquiry, the defendant ought to have known." A nonsuit was granted, and the same was affirmed in the general term and in this court. We are aware that in 219 some states the courts have permitted incompetency of servants to be shown by general reputation, but we have never gone to that extent in this state. It appears to us that the safer and better rule is to require incompetency to be shown by the specific acts of the servant, and then, that the master knew or ought to have known of such incompetency. The latter may be shown by evidence tending to establish that such incompetency was generally known in the community: Marrinan v. New York etc. R. R. Co., 13 App. Div. 439; Baulec v. New York etc. R. R. Co., 59 N. Y. 356; Monahan v. Worcester, 150 Mass. 439; 15 Am. St. Rep. 226; Gilman v. Eastern R. R. Co., 13 Allen, 433; 90 Am. Dec. 210; Davis v. Detroit etc. R. R. Co., 20 Mich. 105; 4 Am. Rep. 364.

One Dean was sworn as a witness for the plaintiff, and testified that he knew Brown when he worked for the defendant at Schenectady. He testified that he had never heard his mental characteristics talked about and knew nothing of his mental reputation, but stated that he had heard of a handle to his name-a nickname. He was then asked to give his nickname. This was objected to; the objection was overruled and exception taken, and the witness answered that he was called "Crazy Brown"; this was eight or ten years before, and he had not heard him. spoken of before this accident within the last ten years. We think that this evidence was prejudicial and incompetent, and, without considering the other numerous exceptions in the case, that a new trial should be granted.

The judgment should, therefore, be reversed and a new trial granted with costs to abide the event.

All concur, except Gray, J., absent, and Martin, J., not sitting.

MASTER AND SERVANT-INJURY OF SERVANT THROUGH INCOMPETENCY OF FELLOW-SERVANT-LIABILITY OF MASTER.-A servant may recover damages for injury through the negligence of his fellow-servant, if the latter was unskilled and Incompetent to discharge his duties, and this was known to the master, or could have been known to him by due care, and was not

known to the injured servant: Campbell v. Cook, 86 Tex. 630; 40 Am. St. Rep. 878, and note. A servant does not assume the risk of such injury: Chicago etc. R. R. Co. v. Champion, 9 Ind. App. 510; 53 Am. St. Rep. 357. A master is charged with knowledge of the general reputation of his servant for recklessness and unfitness for his position, when such reputation is generally and commonly known, and he has held such position for a number of years: St. Louis etc. Ry. Co. v. Hackett, 58 Ark. 381; 41 Am. St. Rep. 105, and note; Reiser v. Pennsylvania Co., 152 Pa. St. 38; 34 Am. St. Rep. 620, and note. As to the evidence necessary to enable the servant to recover for injury received through a fellow-servant, see Western Stone Co. v. Whalen, 151 Ill. 472; 42 Am. St. Rep. 244, and note; Grube v. Missouri Pac. Ry. Co., 98 Mo. 330; 14 Am. St. Rep. 645; Monahan v. Worcester, 150 Mass. 439; 15 Am. St. Rep. 226.

JEWELERS' MERCANTILE AGENCY V. JEWELERS'
WEEKLY PUBLISHING COMPANY.

[155 NEW YORK, 241.]

A COPYRIGHT AND THE COMMON-LAW RIGHT of an author or publisher of a book cannot exist at the same time. The acquisition of the former terminates the latter.

COPYRIGHT, PUBLICATION SUFFICIENT TO SECURE. One who records the title of a book, and causes copyright notices to be printed on its title page, and delivers two printed copies to the librarian of Congress, thereby publishes the book so far as necessary to secure a copyright.

THE PUBLICATION OF A BOOK DEFEATS THE COMMON-LAW RIGHT of its author or publisher, whether a copyright is secured or not. After that, every one may make use of the book, if he sees fit.

BOOK, PUBLICATION OF, WHAT IS AND WHAT IS NOT.-One writing a book may keep the manuscript without printing it, or may print it and determine that the public may not see it, or may give it private circulation for a restricted purpose without losing his common-law rights therein, but if he deposits two copies of the book with the librarian of Congress, and delivers other copies to subscribers, though with an agreement that the book is loaned and not sold, and that it should not be given to, or seen by, others, it is published, and the author's common-law rights are at an end, and others may use the book and republish any information contained therein.

Suit to enjoin the defendant from making use of the plaintiff's reference books or confidential sheets and from copying, appropriating, publishing, or otherwise using information taken therefrom. The plaintiff was a domestic corporation engaged in the business of a mercantile agency. The information which it received in its business was printed twice a year in the form of a reference book, and it issued weekly a confidential sheet of changes and corrections. The books and sheets were furnished subscribers under a written agreement which, in substance, pro