
    Bridget Keenan et al., as Administrators, etc., App’lts, v. The New York, Lake Erie and Western Railroad Company, Resp’t.
    
      (Court of Appeals,
    
    
      Filed February 26, 1895.)
    
    1. Master and servant—Rules.
    A gang boss over forty or fifty men cannot, without direct authority from the company, change the safe and proper rules in pursuance of which the work in the repair yards is conducted, and direct workmen to prosecute their labors under cars standing on tracks other than the regular, duly protected repair tracks.
    
      
      2. Same—Fellow.
    A servant, who sustains injury from the negligence of a superior agent •engaged in the same general business, cannot maintain an action against their common employer, though he was subject to the control of such superior agent and could not guard against his negligence or its consequence.
    Appeal from order of the general term of the superior court of Buffalo, which reversed a judgment in favor of plaintiffs entered upon a verdict and affirmed on order denying a motion for a new trial.
    
      George W. Cothran, for app’lts; Adelbert Mott, for resp’t.
   Bartlett, J.

The plaintiff’s intestate, who was a car repairer, brought this action to recover damages for personal injuries received by him while working in defendant’s repair yard in Buffalo.

The jury rendered a verdict in his favor for $10,000, and the .general term of the superior court of Buffalo reversed the judgment on questions of law, ordering a new trial, and the intestate’s ■administratrix (he having died after verdict rendered) appeals to this court giving the usual stipulation for judgment absolute in case of affirmance.

The facts in this case are simple and will be assumed as stated •by the intestate for the purposes of this appeal.

There were three tracks running east and west at the place in the repair yard where deceased was working on the day of the accident; the southerly track was No. 21; the middle track, No. 2 ; the north track, No. 8. It is undisputed that the only entrance to these tracks was from the east; that No. 21 and No. 2 were used exclusively for repairing cars, and' No. 8 was known as the il cripple track,” on which were placed cars needing repairs ; that the repairing tracks were protected by flags when men were at work under the cars, but no such precaution was adopted on track No. 8, as no repearing was done there, and cars were shunted thereon at all hours of the day.

The deceased testified: . “ I was working right next to track No. 8 and within a short distance for three months, and saw cars ■on that track every day and the way they did business there.” From five hundred and fifty to nine hundred men were employed in the repair yards, and one Bobert Gunn was foreman in ■charge of the repairs of cars; O’Day was assistant foreman and Getz was the man who distributed the various articles of hardware such as bumper springs, braces, etc., to the men when at work.

The men were divided up into small gangs and one Tracy was foreman or gang boss of the gang in which the intestate worked.

On the day of the accident the intestate and another man were at work repairing a car on track No. 2, and found they needed an eight-inch bumper spring; the intestate applied to Getz for the spring and was informed that he did not have one ; he then went to what was known as the scrap pile, which contained secondhand material of all kinds, and failed to find the required article-there; he then reported these facts to the gang boss, Tracy, who-told him he had better go down to No. 8 track and take one from a car there; in company with his fellow-workman intestate followed out this suggestion, and while under a car on track No. 8, in the act of removing a bumper spring, some cars were backed in on that track, moving the car under which intestate was working,, and inflicting upon him very serious and permanent injuries.

The only legal question in this case is, did the gang boss, Tracy, in suggesting to the intestate to go down on track No. 8- and get the spring, represent the defendant ?

It is admitted by the learned counsel for the appellant that, there is no direct evidence in the case showing that it was any part of Tracy’s duty to furnish materials required by the workmen under him, but he insists that the defendant having failed to designate any one person whose duty it should be to borrow springs from other cars for temporary use, and still continuing the business of car repairing, it not only acquiesced in the gang foremen procuring such materials, but impliedly authorized them to-procure them wherever they could.

The appellant’s counsel also admits that Tracy was the fellow-servant of the intestate in everything except in the performance of a duty which the law imposed upon the defendant, viz., procuring materials for use.

We are unable to adopt these views.

It would lead to the establishment of an exceedingly unsafe rule to hold that a gang boss over forty or fifty men could, without direct authority from the company, change the safe and proper rules in pursuance of which the work in the repair yards was conducted, and direct workmen to prosecute their labors under cars-standing on tracks other than the regular, duly protected repair-tracks.

Tracy was in no legal sense the representative of the defendant when he suggested to the intestate that he should procure a spring from a car standing on track No. 8; he was a fellow-servont making a very unwise and dangerous suggestion.

A servant who sustains an injury from the negligence of a. superior agent, engaged in the same general business, cannot maintain an action against their common employer, although he was-subject to the control of such superior agent, and could not guard against his negligence or its consequences. Sherman v. Rochester & Syracuse R. R. Co., 17 N. Y. 153; Loughlin v. State of New York, 105 id. 159; 6 St. Rep. 826.

The order appealed from should be affirmed and judgment absolute directed for the defendant, with costs.

All concur.

Ordered accordingly.  