
    Margaret Sullivan, Administratrix, etc., Resp’t, v. The Tioga Railroad Company, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed March 5, 1889.)
    
    1 Negligence—Contributory negligence—Risk taken by employee.
    In an action for damages for injuries inflicted through the negligence of the defendant’s servants, the place of the accident was the yard of the New York, Lake Erie and Western Railroad Company. It contained, among others, a switch track running at one point over an ash pit to a turn-table. The intestate was a servant of that road, and was employed as an ashman. He was at no time under the authority of or employed by the defendant. The defendant was a terminal company and used by permission the switch track and turn-table. While doing so its engine ran upon the intestate and injured him: Held, that where the place where a party is employed is one of danger it does not follow that in taking the risk of his employment he contributes to an accident occasioned by circumstances in no way connected with it.
    
      2. Same—Employees who are not co-servants entitled to protection" AGAINST NEGLIGENCE OF EACH OTHER.
    
      Held, that the intestate was, in respect to his employment, a stranger to-the defendant. Neither was responsible to the master of the other, and not being co-servants, each was entitled to protection against the negligence of the other.
    3. Same—When question for the jury.
    It does not, as matter of law, impute negligence because an injured person trusts to natural results, without the complications of scientific experiments; the question of negligence is for the jury, under the circumstances, to determine.
    Appeal from a judgment of the supreme court general term fourth department, affirming a judgment entered upon; a verdict and an order denying a motion for a new trial made at special term on a case.
    ■ D. C. Robinson, for app’lt; Sylvester S. Taylor, for resp’t.
    
      
       Affirming 7 N. Y. State Rep., 627.
    
   Danforth, J.,

Action to recover damages for injuries inflicted upon plaintiff’s intestate through negligence of defendant’s servants. The trial judge refused to nonsuit- and jury found for the plaintiff. Motion for a new trial was denied at special term, and from order there made and from judgment entered upon verdict, an appeal was taken to general term where both were affirmed. 7 N. Y. State Rep., 627. This appeal is against that decision.

The place of accident was the yard of the New York, Lake Erie and Western Railroad Company at Elmira. It contained among others, a switch track running at one point over an ash pit, to a turn--table. The intestate was a servant of that road as an ash man, and at the time in question was-at work in, or just leaving the pit. The Tioga Railroad was a terminal road and had permission from the other-company to use the track and turn-table for reversing its engines. It was doing so upon this occasion, in charge of' its engineer and fireman, and at the pit its engine ran upon the intestate, causing, as the surgeon says, “a compound fracture of the foreleg.” In about ten days afterwards, and before recovery from his hurt, he died. While in the-yard the defendant’s engine was subject to the rules of the other company. These facts are not disputed.

But the appellant contends, as it contended upon the trial (1) that no negligence on its part was proven; (2) that the plaintiff’s intestate contributed to the accident; (3) that the injury received did not cause death; and (4) that the persons in charge of the locomotive were fellow servants of the decedent.

Upon the first and second propositions the testimony was brought to the attention of the trial judge by motion for nonsuit, to the attention of special term by motion for a new trial, and afterwards to the attention of the general, term. It is not necessary to rehearse it. It has, however, been examined by us in view of the appellant’s contention that in giving it effect, these various tribunals were in error, and we easily find that the evidence in some reasonable view was sufficient to justify a conclusion that the persons in charge of the engine knew, or should have known that the intestate was at the pit, and so exposed as to make collision probable, yet that they went upon him without warning or notice of any kind, under circumstances which, as-interpreted by the charge, the jury characterized as negligent. Upon the evidence they were also justified in finding that the intestate had no knowledge of the approaching locomotive. He knew, of course, that the place he occupied was a place of danger, but it by no means follows that in taking the risk of his employment he contributed to an accident occasioned by circumstances in no way connected with it. Upon both points the verdict is conclusive. Nor were the persons in charge of defendant’s engine—the engineer and fireman, in any sense his co-employees.

The evidence fails to show that at the time of the accident he was in a common service or engaged in a common employment with them. He was in the service of the New York, Lake Erie and Western Eailroad Company; they were in the service of the Tioga Eailroad Company. Their negligence was not one of the risks which by virtue of his-contract of service he had taken upon himself. He was at no time under the authority of the defendant, nor in any respect its servant. He neither owed service to it, nor did he render it. On the other hand, neither the engineer nor-fireman owed any duty to the New York, Lake Erie and Western Eailway. It is true the company owned the track and the defendant used it upon necessary occasions;, but the defendant, and so the defendant’s servants in charge of its engine, used it as licensees under such regulations as were imposed as conditions of use, not of service. The intestate was in respect to his employment a stranger to the defendant. He was merely at work in a yard to which, by permission of his employer, the defendant by-its servants had access. He was removing ashes from the pit. they running an engine over a part of it to reach the turn-table; and the duties of each were so limited. Neither was responsible to the master of the other for the manner of performance. There was no common master; and all hough having regard to the place of service, they were neighbors, they were not co-servants. Each, therefore, is-entitled to protection against the negligence of the other. Smith v. N. Y. and Harlem R. R. Co., 19 N. Y., 128;, Svenson v. Steamship Co., 57 id., 108.

It is nex' argued by the learned counsel for the appellant fhat the plaintiff should be deprived of her recovery, because the injured man at first rejected the advice of his physician and refused to submit his leg to amputation. If the refusal was fatal to the patient, the defendant has no cause to complain, for death limits a verdict to a less sum than a jury might think proper to award to a living but ¡crippled man. But the physician, in fact, gave no assurance that an operation would change the apprehended Tesult. “ It would,” he testifies, “ have improved the chances,” but he also said that within his own experience there had been cases where under advice, and in the face •of such objection, amputation had been omitted and the limb saved.

It appears therefore that surgery is not an exact science, and even in its present advanced stage there is defective anatomy and hasty conclusions. It certainly can not be ¡said as matter of law that a patient may not, without imputation of negligence, trust to natural results, without the ■complications of scientific experiments. But this question was also properly submitted to the jury and answered by their verdict in favor of the plaintiff. No other question is raised.

We think the appeal fails in every aspect, and that the judgment appealed from should be affirmed.

All concur.  