
    Charles O’Keefe, an Infant, by Annie O’Keefe, His Guardian ad Litem, Respondent, v. Degnon Realty and Terminal Improvement Company, Appellant.
    Second Department,
    December 30, 1910.
    Master and servant — negligence — injury to' brakeman — facts riot justifying recovery.
    The plaintiff, a brakeman, employed on a temporary railroad used to carry materials for work under construction, while standing in the cab of a locomotive, with his hand on the window sill and while stooping down to get some ' coupling pins from a box was injured .in the hand by reason óf 'the fact that the engineer backed the locomotive so that the cab came in collision with a gear covering a concrete mixter which,'to the knowledge of the employees, - was so placed that the engine could not pass it. The box that the master had provided as a receptacle for the coupling, pins was on the front of the engine.
    
      Held, that there could be no recovery as the master having provided reasonably competent fellow-servants was not bound to anticipate that the engineer would operate tlie engine, in such a manner as to bring it into collision with the mixer, that not,being necessary to the work in band; nor was he bound to anticipate that the plaintiff would be in the cab or in the particular position he occupied at the time of the accident.
    Appeal by the defendant, the Degnon Realty and Terminar Improvement 'Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the 'county of Queens on the 20th day of April, 1910, upon the verdict of a jury for $1,500, and also from an order entered in said clerk’s office on the 29tji day of April, 1910,' denying the defendant’s motion for a new trial made upon the minutes. •
    
      F. Olyde 'Sherwood''{Joseph F. Murray and Frank Verner Johnson with him on the brief], for the appellant.
    
      J. Brownson Ker \M. P. O’ Connor with him on the'brief], for the respondent.
   Woodward, J.:

The plaintiff- was employed by the defendant as a brakeman in connection with the operation óf a temporary railroad used to carry concrete and .other materials in and about a certain work being constructed in Long Island City in the year 19018.■ The premises where the work was being carried on- were in a crude condition, incident to the work, and tracks were laid about the premises, with switches for reaching' various parts of .the work with the dump cars and dummy engines, which were'operated without tenders. ■ One of the switches had been placed for the purpose of reaching a concrete mixer, and this mixer had been placed so near to the track that the cars could.-be run under the chutes from the mixers, but' none of the engines could go past the mixer without colliding with the-same. As a result of this situation it was customary .to “ kick ” the cars in onto the switch, and then the employees would put them in place with pinch bars. ' When the cars were loaded and ready to be taken' out the engine woxxld be backed down the switch as near as possible, and then the cars would be attached with, a rop.e Or other contrivance, and drawn out. This, practice appears to have varied somewkat, and the engine known as the Pittsburgh ” appears to have been able to get near enough'to place the cars without detaching them by backing down to a point where a projection from the mixer scraped along the side- of the cab of the engine. On the 26th day of September, 1908, while the plaintiff was employed as a.brakeman upon the premises above described, he took a place in the' cab of- the engine, and says" he was told by the engineer. to get oxit some coupling pins to -be xxsed in attaching 'some other cai's., the engine, being used at the time in backing cars down to' the mixer. According to ■ the testimony of the plaintiff these pins were placed in a box inside of' the cab, though generally on the other engines these pins were placed in a box on the outside and front of the engine, and a box for this purpose was provided on this particxxlar engine, but for some .reason not pointed but, this box was not used on the Pittsburgh.” The engine was moving backward, and the plaintiff -was sitting with his face to the rear. When he was told to get the pins oxit he had to reach down into the box, and for this purpose reached out his hand, and took hold of the window frame of the cab to hold himself in position, and with the other hand reach after the pins. While in this position the. enginéer continued to move the engine backwai’d, when the cab carné into collision with • a-gear'-covering of the mixer, catching the plaiixtiff’s-hand and doing the injury for which he has recovered "a substantial verdict. The negligence alleged in the complaint is that the plaintiff, while lawfully upon the engine in question, “ and without any fault whatsoever on his part, said engine came in contact with another engine belonging to the defendant,. which was in thé path of said engine, and as a result thereof this plaintiff received personal injuries, and all of which was solely due to and solely the result of the negligence and carelessness of the defendant in failing to give this infant [aged eighteen years] plaintiff a reasonably safe and suitable place in which to perform his work.”

If the accident had happened, as alleged in the complaint, by a collision between two engines, one of which was in the path of the other, it is obvious that the negligence was in the operation of the engines, and not in providing a place in which to work. The cab of the engine .was a reasonably safe place in which to work so long as there was no collision with the other engine. It is equally true, it seems to us, that the cab was a safe place in which to- do all of the work for which the cab - was designed, and that it was only because the engineer, who concededly knew all of the dangers, backed his engine down into collision with the concrete mixer that there was any danger for the plaintiff. "The railroad here in use was not designed for general railroad purposes; it was constructed for a temporary purpose in a temporary way; it was designed to move the concrete from these mixers to various parts of the work, and it was not necessary that the tracks should be laid for permitting the engines to go past. All of the practical results could be accomplished by backing the cars in from either direction, and this mode of operation must have been open - and obvious to every man at work there, together with the reasons therefor. The plaintiff was eighteen years of age ; there is no.suggestion that he-was not reasonably intelligent. He had worked there for several months, and while hé testifies that he had never ridden on an engine going past this mixer, for the very obvious reason that none had been past it on this switch, there is nothing in the evidence to show that he did not lmow all of the surroundings, while it does appear that he understood fully that the engines did not run past this mixer, and the reason must have been as open .and obvious to him as to others there employed. Assuming, therefore, that the premises generally .constituted the place in which he was called upon to work, it must have been obvious to him, as to all persons, that there was nothing, dangerous in the location óf.the mixer and The tracks so long as the engines were operated with .a' view, to merely placing these cars and drawing them out after they were loaded' from the -chutes-oí the concrete mixers.- This must have been known to- the defendant as well. If they looked about the premises and saw the location of the switch and of the mixer, they must have known that the engines could not- go by the mixer without hitting it, and as they did not require that the engines should go by it, but that the cars should' be backed in, the premises could not have presented any condition of affairs which would have impress'ed a reasonably prudent man-- as likely to produce the accidént.which happened. There was absolutely no danger to any one in the cab of the engine, in so far as this, concréte mixer Was concerned, if the engine, was properly operated,.if it was. used in the manner which the obvious necessities of the case, called for, and which appears .to have been the manner designed by the defendant, for it clearly appears, that the method of operation: contemplated by the master did. not contemplate having the engine run past the mixer, or near enough to it to' come into collision with-any part of it. ■

We have thus far assumed that the plaintiff was necessarily upon the cab-of the engine in the, performance of his duties, and-itliat this necessity was one for which the master was responsible, :but the evidence does-not support this assumption.- The undisputed -testimony is that the plaintiff was hurt while trying to get some- coupling pins which were contained in a'tool box in- the cab. of the engine, but if. nowhere appears that, the'master had provided- this tool, box foi" the ' purpose of storing these coupling pins. On the other hand1, it does appear, that-all-of. the engines-in usé.by the defendant,, including the' “ Pittsburgh,” -had á box for the purpose of holding.these coupling pins on the outside front of the engine,, and it does not appear that the defendant had any reason for believing that these pins. were to be placed.in the cab of the engine-or that a brakenian would have any occasion for being in the cab. There, was a place on the outside front of the engine for the pins;. there were no brakes,. so far as-appears, to be operated on the engine; the- evidénce doe's not disclose that the plaintiff, had any duties to perform which, required his presence upon -the engine, except as he might have been there for the purpose of getting the; pins, which-properly belonged oh the outside front of the engine, which was a proper place for them provided by the master. Engines of the type in use at the place of the accident do not require a fireman; they are usually operated by a single man, filling both positions, and the engineer’s place was on the right-hand side of the engine looking forward, so that the defendant had no reason for expecting that any one would be on the left-hand side of the engine — certainly not the bralceman, whose duties did not call him there at any time, so far as the evidence discloses, if the work was done in the manner that the master had provided for. If the pins had been placed in the box provided for them by the master, there would have been no excuse whatever for the plaintiffs presence upon the engine so far as the evidence discloses, and whatever might have been the defendant’s duty toward one who, was present upon the engine in the performance of his necessary duties, as required by the master, we think it is not the law that it owed any affirmative duty to the plaintiff which it had not performed in providing all of the equipment necessary to the safe discharge of his duties. If the engineer or other employees of the defendant chose to disregard the provisions made by the master, and produced a condition where it was necessary for the brakeman to be upon the engine, that is not the negligence of the master, but that of a fellow-servant (assuming the plaintiff himself did not make the necessity), and the verdict against the master ought not to stand. The place provided by the defendant for the plaintiff to work, assuming that the work was in getting the coupling pins, was on the outside front of the engine. This place, in so far as the mixer was concerned, at least, was absolutely safe; by no possibility, without running off the track, could the front of the engine be brought into contact with the mixer, and it was only because some one other than the master had placed the'' pins in the engine cab, where they were not properly kept under the implied directions of the master, that the plaintiff had any excuse for being in the engine cab, or in any position to be injured by contact with the mixer. Being in the engine cab, there was no danger to the plaintiff, except for the fact that the engineer operated the engine in a careless and negligent manner, not necessary to the performance of the- work required of him by the master, and this negligence, on .the part of the engineer was the sole proximate cause of the accident. The master having performed the duty of providing reasonably competent fellow-servants, was not bound to anticipate, that the engineer would operate the engine in such a manner as to bring it into collision with the mixer, that not being. ■ necessary to the work in hand, and it was not bound to anticipate that the brakeinan would-be in the cab, or that he would be called upon to be in the position which he was occupying at the moment of the accident.

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

Hirschberg, P. J., concurred; Jenks, Burr and Rich, JJ., com curréd on the second ground stated in the opinion.

Judgment-and order reversed and new trial granted, costs to abide the event.  