
    Bridget McDonald, Adm’rx, Resp’t, v. The New York Central & Hudson River Railroad Co., App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed April 13, 1892.)
    
    2TEGLIGEÍTCE—RAILROAD—FELLOW SERVANTS.
    Plaintiff’s intestate, a flagman, was killed by coming in collision with an engine which was running without any headlight except a lantern. The engine was inspected at Syracuse and found in good order, but at Rochester the engineer found the headlight out of order and proceeded as stated, instead of taking the engine to the shop for repairs. The rules of the company required engineers to look after their engines to see that they were in proper order for use, and if found out of order to take them to the proper place for repair. Held, that the supervision required of the engineer pertained to Ms duty as an operative simply, and in performing ■it he was acting as a co-employee of the deceased, and that defendant was. not liable for his act in proceeding with the engine in that condition.
    Appeal by the defendant from an order denying its motion for a new trial made upon the minutes. This case was tried at the Monroe circuit, in June, 1891, and the plaintiff had a verdict.
    The action was brought to recover damages for the death of the plaintiff’s intestate, Thomas McDonald, who was killed, while in the discharge of his duties as a flagman in the defendant’s employ at the first highway crossing west of Chili station, on the evening of December 9, 1891, by coming in collision with an engine of defendant’s running westerly in the night time without a lighted headlight. The engine was running without a train.
    
      Albert H. Harris, for app’lt; George F. Yeoman, for resp’t.
   Lewis, J.

We assume, in disposing of this appeal, that McDonald’s death was caused by the running of the engine without a headlight and that he was free from negligence contributory to-, his death. The question to be considered is, whether the deceased came to his death by the negligence of the defendant, or by the negligence of a co-employee only.

Mr. Brown, as one of defendant’s engineers, was required on the afternoon of the day of the accident to run an engine from the round house in the city of Syracuse, to the city of Buffalo. His fireman was Thomas Freeney. They left Syracuse at 2.30 that afternoon ; when they arrived at Rochester it was dark, and they there discovered that the headlight glass of the engine was out of order and the light was not burning. The glass was unbroken ; the bottom of it was in position, but the top was tilted back four-inches, which let in the air and extinguished the headlight. The engineer could not repair it, so he caused to be placed on the front of the engine a signal light about the size of an ordinary track lantern, and proceeded westwardly towards Buffalo, without any headlight except the lantern, and in passing over the crossing where McDonald was stationed ran against him, causing his death.

It was shown upon the trial that the defendant had in its employ at the round house in Syracuse, where this engine was-kept, a Mr. Wilke, whose business it was and had been for many years to inspect the headlights of the engines and see that they were kept in repair. This engine was shown to. have been in the-round' house at Syracuse the day of the accident until it was taken by the defendant’s engineer, as stated. The evidence tended to show that the hfeadlight was inspected by defendant’s inspector before it left Syracuse that day, and that it was in good condition.

The defendant had shops at Syracuse and Rochester, with facilities for repairing the headlights of their engines. There was. evidence tending to show that the defendant required its engineers, when using engines, to look after them to see that, they were in proper order for use, and in case they were found to be-out of order to take the engines at once to the proper place for repairs and report the defects. The rules of the company provided that a train running after sunset should display its headlight. The rules also provided that conductors and engine men must take every precaution for the protection of their train, and in all cases of doubt or uncertainty to take the safe course and run no risks.

The trial justice charged the jury, “that it appeared from all the evidence in the case that the engineer was charged with the duty of inspecting the engine and seeing that it was in proper condition and that it was for them to say whether the failure of the inspector, who, for the purposes of taking care of the engine, stood in the place of the company itself; whether his failure, after he had discovered that there was a defect in the headlight, to bring it to the notice of the people whose duty it was to mend it, and to see that the proper thing should be done with it, was negligence on the part of the company.” The defendant’s counsel duly excepted to this portion of the charge of the court, and asked the court to charge the jury that in leaving Bochester and running to the crossing in question with the headlight óf the engine out of order, the engineer acted as a fellow servant of McDonald, and not as the defendant. The court declined so to charge and the defendant excepted. The court did charge, that there was no negligence in the inspection of the headlight at Syracuse, and that there was no evidence of any defect in the headlight when it left Syracuse. So we have the question presented, was the act of the engineer in proceeding with the defective headlight the negligence of the defendant, or the negligence of a co-employee of the deceased?

It is obviously the duty of every person engaged in the use of any kind of machinery to keep a constant supervision over it, to see that it does not get out of order. The evidence shows that the repairing of this headlight could only be done at a shop furnished with proper facilities. It was the engineer’s duty when he found the headlight out of order to run the engine into the shop at Bochester for repairs. The engineer, the fireman and the deceased, so far as the ordinary duties they were required to perform, were unquestionably fellow servants.

It.is conceded that when Brown was performing an act necessary to the management and movement of his engine he was a co-employee of the deceased.

But it is contended that when he was looking at the engine to see if it was in condition to be safely used, he was an inspector and stood in the place of the company.

The acts of manipulating the engine levers and looking at the engine may be performed simultaneously, and yet the respondent contends that when doing one of the acts Brown stood as a representative of the company, and in doing the other he was acting as an engineer simply. In keeping an oversight over the engine, the engineer was, we think, simply performing a duty incumbent upon him as an engineer, a duty incident to his position as an engineer, and when he determined to proceed with the defective engine, it was the act of a co-employee of the deceased, and not the act of the principal.

The engineer was not required to repair the headlight; had he run the engine into the repair shop and reported its condition to the company he would have fully discharged his duty. If an employer, who carefully examines a machine and, finding it in good condition, directs his servants to use it, enjoining upon one of them the duty of watchfulness to see that it does not get out of repair, is to be held liable for an injury to one of the servants, caused by the failure of the one required to keep watch to perform his duty in that regard, the doctrine that employers are not to be held liable for the negligent acts of co-employees would be practically exploded.

“ A rule of a railroad company providing that conductors will be held responsible for the proper adjustment of switches used by their trains, does not make the conductor the representative of the company so as to make his negligence that of the company, in respect to injuries sustained by other employees.” Miller v. Southern Pacific R. Co. (Oregon), 43 Alb. Law J., 354; Reynolds v. Kneeland, 44 St. Rep., 458.

"We have examined the authorities referred to by the learned trial justice and the counsel for the respondent, but they fail in our judgment to sustain the verdict in this case.

Fuller v. Jewett, 80 N. Y., 46, was a case of an injury to an engineer, caused by the explosion of a locomotive boiler. The explosion was caused by the weakness of the boiler, resulting from defective stay-bolts and a defective outer sheeting. The engine, after it had been in use for ten years, was taken to the shop' of the company for general repairs, and the master mechanic in charge of the shop gave directions for its thorough overhauling. The repairs were made by mechanics in the employ of the company. The company was held liable for the negligence of these mechanics in repairing the boiler upon the ground that it had delegated to them the entire charge of making the repairs, and in doing so they stood in the place of the principal.

The case of Crispin v. Babbitt, 81 N. Y., 516, fails to sustain the contention of the respondent.

The defendant having in its employ at Syracuse an expert tó whom it had confided the duty of examining and repairing its locomotive headlights, and he having fully discharged his duty in the premises, the defendant was not liable to the plaintiff for the negligence of the engineer. The supervision of the engine required of the engineer Brown pertained to his duty as an operative simply, and in performing it he was acting as a co-employee of the deceased.

"We find ourselves unable to agree with the learned trial court’s views of the liability of the defendant upon the evidence.

The order appealed from should be reversed, and a new trial granted, costs to abide the event.

Dwight, P. J., and Macomber, J., concur.  