
    Mary G. Krulder, as Administratrix, Respondent, v. William H. Woolverton, as President of the New York Transfer Co., Appellant.
    (New York Superior Court —General Term,
    March, 1895.)
    While plaintiff's intestate was engaged in putting up shades in the skylights in a ferry house and for that purpose standing upon a high ladder, an employee of a transfer company Wheeled a loaded truck against the ladder, by reason of which intestate was thrown to the ground and received in] uries from which he died. Held, that the intestate could not be held guilty of contributory negligence per se, and that the questions of negligence were properly left to the jury.
    Employees are not fellow servants unless they all are under the control and direction of a common master.
    Appeal by defendant from judgment entered on verdict of jury in favor of plaintiff, and from order denying motion for a new trial.
    
      John L. Hill, for appellent.
    
      Edga/r Whitlock, for respondent.
   McAdam, J.

The action is founded on the statute to recover for injuries sustained by the plaintiff’s husband, resulting in his death, by reason, of the negligent act of one Reilly, the defendant’s servant. The plaintiff’s intestate, Cornelius Krulder, on June 15, 1891, was at work on a ladder sixteen feet high, putting up shades under a horizontal skylight in the ferry house of the .Rew Jersey Central Railroad, at the foot of Liberty street, this city, when Reilly wheeled a loaded baggage truck against the ladder on which deceased was standing, by reason of which lie was upset and thrown to the ground, receiving injuries from which he died.

The deceased was where he had a legal right to be ; his work called him. there, and no accident would have happened if the defendant’s employee had not run against the ladder. Even if Krulder had reason to believe that persons with baggage trucks would pass and repass, he had a right to act on the assumption that they would exercise at least ordinary care, and thus avoid doing him damage. Newson v. R. R. Co., 29 N. Y. 383-390; Germann v. R. T. Co., 37 N. Y. St. Repr, 360; 128 N. Y. 681, and cases collated in Shear. & Redf. Neg. (4th ed.) § 92.

In no phase of the case can it be held that the decedent was-guilty of contributory negligence per se, for that term implies some active cause which co-operatés in bringing about the injury, and here the damage seems to have resulted exclusively from the carelessness of the defendant’s servant. If plaintiff’s-intestate had fallen from the ladder, or it had toppled over by reason of his weight or movements while upon it, negligence per se might have been imputed to him. Marsh v. Chickering, 101 N. Y. 396. But such is not the case. He was apparently secure upon the structure, and for all that appears would have finished his work in safety if Reilly had not, by running his truck as he did, precipitated him to the ground.

Where the question of negligence is connected with a disputed state of facts, or facts from which, if not disputed, different minds may honestly draw different conclusions, the whole matter must be left to the jury; and to warrant the= court in withholding the case from the jury or instructing them that the plaintiff is guilty of contributory negligence, the evidence must be such as to allow no other inference to be drawn therefrom. Wolls Questions of Law & Fact, § 285 ; Lee v. Gas Co., 98 N. Y. 115; Chisholm v. State, 141 id, 246 ; Greany v. R. R. Co., 101 id. 419 : Feeney v. R. R. Co., 116 id. 375; Stackus v. R. R. Co., 79 id. 464; Beach Contrib. Reg. § 33. This is not a case which could have been withheld from the consideration of the jury under the rule stated.

The questions of the negligence of the defendant’s employee, on the one hand, and-freedom from fault of' the decedent, on the other, were, therefore, properly left to the jury, and were submitted to them under a clear and impartial charge, and they found adversely to the defendant on both propositions. .These findings, amply sustained by the evidence, may, therefore, be regarded as conclusively establishing the facts to be as found by the verdict.

The point urged by the defendant in the request to charge, that the accident was occasioned by the act or omission of a fellow-servant-, is founded on a mistaken theory. It is argued that the neglect imputed was the failure of one Wertz to notify Reilly of Kfulder’s presence on the ladder, or in diverting Reilly’s attention from Krnlder. This point needs no other answer than a reference to the fact that Reilly was distinctively in the employ of the deféndant, while Wertz was an' employee of the Hew Jersey Central Railroad and the decedent a workman of one Carpenter. Employees are not fellow-servants unless they are all under the control and direction of a common master. Shear. & Redf. Neg. (4th ed.) § 225, and cases cited; Svenson v. S. S. Co., 57 N. Y. 108; Sanford v. Oil Co., 118 id. 571.

The deceased, at the time of his death, was thirty-nine years of age, in sound health, sober and industrious, earning on an average fifteen dollars per week. His wife was seven years younger. Ho immutable guide for estimating and measuring damages under the statute has as yet been declared; much must necessarily be left to the good sense and intelligence of the jury, and the elements presented were sufficient to warrant their awarding the full statutory amount of $5,000, the extent of the recovery here. Lockwood v. R. R. Co., 98 N. Y. 523; Bierbauer v. R. R. Co., 15 Hun, 559; 77 N. Y. 588; Houghkirk v. D. & H. C. Co., 92 id. 219.

We find no error in the rulings, and the judgment and order appealed from must be affirmed, with costs.

Sedgwick, Ch. J., and Beekman, J., concur.

Judgment and order affirmed, with costs.  