
    Charles A. O’Neil, Respondent, v. Lehigh Valley Railroad Company, Appellant.
    Fourth Department,
    March 8, 1916.
    Master and servant — negligence—injury to brakeman while “ staking out ” freight car — action under employers’ liability provisions of Labor Law — negligence of fireman — act of superintendence — vice-principal— contributory negligence — burden of proof — assumption of risk.
    Where, in an action under the employers’ liability provisions of the Labor Law by a brakeman who was injured while “staking out” a freight car from the siding to the main track of the defendant’s railroad, it appeared that the plaintiff placed one end of a stake against the end of a freight ear and held it there while the engine upon the main track backed up until it came against the other end of the stake, and that as the plaintiff let go of the stake the fireman who was operating the engine stopped it or so checked its speed as to relieve the pressure upon the stake, causing one end of the stake to fall and the other end to press against plaintiff, it was error for the court to leave to the jury any question of negligent superintendence, but such error was not so prejudicial as to require a reversal.
    The jury having found that the fireman negligently managed the engine, the defendant’s liability for such negligence rests upon the fact that the fireman is a vice-principal under section 64 of the Railroad Law, and not a superintendent within the meaning of the Labor Law.
    Section 202a of the Labor Law, placing the burden of proof as to plaintiff’s contributory negligence upon the defendant, is applicable in such a ease. The plaintiff cannot be held to have assumed the risk of the fireman’s negligence.
    Appeal by the defendant, Lehigh Valley Eailroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Cortland on the 15th day of April, 1915, upon the verdict of a jury for $é,500, and also from an order entered in said clerk’s office on the 12th day of April, 1915, denying defendant’s motion for a new trial made upon the minutes.
    
      Peter F. McAllister [Cobb, Cobb, McAllister & Feinberg, attorneys], for the appellant.
    
      Nathan L. Miller [James F. Dougherty, attorney], for the respondent.
   Per Curiam:

This action is by the servant against the master for personal injuries caused by defendant’s negligence and is brought under the employers’ liability provisions of the Labor Law.

Plaintiff was a brakeman and was injured while staking out ” a freight car from a siding to the main track of defendant’s railroad. Plaintiff placed one end of a stake ten feet long against the end of the freight car and held it there while the engine .upon the main track hacked up until it came against the other end of the stake, when the engine on signal from plaintiff continued to back for the purpose of moving the car along the siding and onto the main track. After the movement began, plaintiff let go of the stake and started to climb up onto the rear platform of the tender near the place against which one end of the stake rested. As he did so, the fireman, who was operating the engine, is alleged to have stopped the engine or so checked its speed as to relieve the pressure upon the stake, and thereby cause the end of the stake which was against the freight car to fall to the ground and the other end to be pressed against plaintiff’s foot, causing injuries which resulted in the loss of a part of his foot.

The grounds of defendant’s negligence left to the jury were the alleged negligent conduct of the fireman -in stopping or checking the speed of his engine, which permitted the stake to fall to the ground, and the jury were, in effect, instructed that if the fireman was negligent in this respect, defendant' might be held' liable under section 200, subdivision 2, of the Labor Law (Consol. Laws, chap. 31 [Laws of 1909, chap. 36] as amd. by Laws of 1910, chap. 352) or section 64 of the Railroad Law (Consol. Laws, chap. 49; Laws of 1910, chap. 481), if a negligent act of superintendence, or under section 64 of the Bailroad Law, for the negligence of one having physical control and direction of the movement of the engine. The jury were also instructed that by virtue of section 202a of the Labor Law (as added by Laws of 1910, chap. 352) the burden of proof upon the question of plaintiff’s alleged contributory negligence was upon the defendant.

It is conceded that the trial court was in error in leaving to the jury any question of negligent superintendence. We are of opinion, however, that the error was not so prejudicial to defendant as to require a reversal. It was the management of the engine by the fireman which the jury were permitted to find to be an act of superintendence, and only such acts of management. By their verdict the jury have found the fireman to have negligently managed the engine. For the fireman’s negligence in this respect defendant’s liability rests upon the fact that the fireman is a vice-principal under section 64 of the Bailroad Law, and not a superintendent. As the jury have necessarily found the fireman to have been negligent, we think they must have reached the same result in case they had been properly instructed that the fireman was not a superintendent.

It is claimed that the ruling that the burden of proof was on the defendant upon the question of plaintiff’s contributory negligence was error in that, there being no defect in the ways, works, machinery or plant of the defendant, the case was not properly brought under the Employers’ Liability Act, and that, therefore, section 202a of the Labor Law, which casts the burden of proof upon the defendant, is not applicable.

This question has recently been passed upon by the Appellate Division in the Third Department in. the case of Hubbell v. Pioneer Paper Co. (160 App. Div. 356), and the conclusion reached by a majority of the court that this section is applicable to all actions for personal injuries on the ground of negligence by an employee against his employer, whether brought under the employers’ liability provisions of the Labor Law or not. We are not aware that the question has been passed upon in any other department or in the Court of Appeals.

Under the circumstances, we are disposed to follow this decision and to hold that the ruling of the trial court was correct.

Upon the point that the plaintiff’s theory as to the manner in which the accident happened is contrary to the law of physics, we think that question was for the jury and that we ought not to disturb their verdict'on that ground.

We are also of opinion that plaintiff cannot be held to have assumed the risk of the fireman’s negligence.

The judgment and order appealed from must be affirmed, with costs.

All concurred.

Judgment and order affirmed, with costs.  