
    Riley v. O’Brien et al.
    
    
      (Supreme Court, General Term, Second Department.
    
    July 2, 1889.)
    Master and Servant—Negligence oe Fellow-Servants.
    Plaintiff, while in defendants’ employ, was directed by defendants’ superintendent to take some bricks from a pile. Plaintiff called the superintendent’s attentention to the shaky condition of the pile of bricks, to which the superintendent replied, “All right; I will attend to that.” Afterwards the pile cracked and the cover slipped off, breaking plaintiff’s leg. There was no evidence that the superintendent was incompetent, or that the bricks were badly piled or unskillfully coy ered. Held, that the injury was caused by the neglect of a fellow-servant.
    Appeal from circuit court, Westchester county.
    Action by Philip Riley against John O’Brien and He man Clark. The complaint was dismissed, and plaintiff appeals.
    Argued before Barnard, P. J., and Dykman and Pratt, JJ.
    
      William Riley, for appellant. JE. T. lovatt, for respondents.
   Barnard, P. J.

The liability of the masters for injuries occasioned an employé by the immediate act of a co-servant, and not by the personal act or omission of the master, turns upon the character of the act. If the fellow-servant whose act or omission caused the injury was at the time representing the master, in doing the master’s duty, the master is liable. If, on the other hand, he was simply performing the work of a servant, in his character as servant and employé merely, the master is not liable. Assuming that the plaintiff was an employé of the defendants, the case shows that one Thomas Jones was the defendants’ superintendent at shaft Ho. 17 of the new Croton aqueduct. He told the plaintiff to get out some brick from a pile, to load a car. The plaintiff called Jones’ attention to the shaky condition of the pile of brick, and was told it was “all right; I will attend to that.” The plaintiff continued work, the pile of brick cracked, and the covering of boards on the pile slid off, and broke the plaintiff’s leg. The question is whether the master is liable for the injury. There is no proof that Jones was an incompetent foreman, and none that the brick was either badly piled or unskillfully covered. The case seems to show only a neglect of a fellow-servant. The grade of the superintendent does not vary the principle that an employé assumes the risk of the service, and that the neglect of an employé gives no cause for complaint against the master. Crispin v. Babbitt, 81 N. Y. 516. The case then resembles Loughlin v. State, 105 N. Y. 159, 11 N. E. Rep. 371. In that case the captain of a state vessel put a workman under him in a dangerous place under a bank. When the bank was loosened below, the part overhanging fell on the plaintiff. This was held to be the act of a fellow-servant. The captain had power of direction, but it was in respect to the manner of proceeding with the work which was committed to his discretion and judgment. The judgment should therefore be affirmed, with costs.  