
    John Hotaling, Respondent, v. James Stewart & Company, Inc., Appellant.
    Third Department,
    January 6, 1915.
    Blaster and servant — negligence — injury to brakeman—act of superintendence — fellow-servant.
    To justify a recovery by an employee under subdivision Z of section 200 of. the Labor Law, making an employer liable for the negligence of one intrusted with and exercising superintendence, it must appear that the negligent act which resulted in an injury to the plaintiff was done by the person while exercising acts of superintendence.
    Where plaintiff, a brakeman upon a locomotive used by the defendant, his employer, in hauling dump, cars, was in some respects under the direction of the engineer, who in some respects was required to follow the signals and directions of the plaintiff, the act of the engineer in stopping the engine on the signal of another when plaintiff of his own volition was standing on an iron plate covering the space between the engine and the tender, was the act of a fellow-servant and not that of ■ one exercising superintendence over the plaintiff.
    If injury resulted to the plaintiff it was not because the engineer applied the air brake upon the signal but because the place upon which the plaintiff was riding necessarily carried with it a certain amount of danger from which he has suffered.
    A judgment entered on a verdict in favor of the plaintiff reversed on the law and facts and the complaint dismissed upon a finding by the Appellate Division that defendant was not guilty of negligence and that plaintiff was guilty of contributory negligence.
    Appeal by the defendant, James Stewart & Company, Inc., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk -of the county of Saratoga on the 25th day of May, 1914, upon the verdict of a jury for $175, and also from an order entered in said clerk’s office on the 20th day of May, 1914, denying defendant’s motion for a new trial made upon the minutes.
    
      R. A. Mansfield Hobbs [ Walter P. Butler of counsel], for the appellant.
    
      Leary & Fullerton [Walter A. Fullerton of counsel], for the respondent.
   Kellogg, J.:

The defendant is a contractor upon the barge canal, and in its work uses a locomotive in hauling dump cars from its steam shovel to the dump. Bissonette was the engineer upon the engine, the plaintiff the brakeman. As they were approaching the dump a quick signal was given to the engineer to stop. He applied the brake in the usual way, and stopped within thirty or forty feet. He was going eight or ten miles an hour. The brakeman was standing on an iron plate, the apron which covers the space between the locomotive and the tender.- As the brake was applied the engineer saw the plaintiff slip upon the iron apron and lunge forward, but he did not fall. The plaintiff claims he fell forward and was hurt, his hands being loosened from the braces by which he was steadying himself. He swears that the locomotive stopped within eight feet after the air was applied. The locomotive was a proper locomotive, with proper equipment for this kind of work. The brake upon it is what is known as “straight air ” and not as “triple valve ” equipment, and an emergency application cannot be made The locomotive stops gradually after the air is applied.

The plaintiff has exaggerated his injuries and we find his testimony unreliable where he and the engineer come in conflict as to material points. The complaint is of the omnibus type, alleging all kinds of negligence. Upon the. trial the plaintiff elected to rest entirely upon subdivision 2 of section 200 of the Labor Law. The question, therefore, is whether he received an injury by reason of the negligence of a person in the defendant’s service who was intrusted with superintendence. . To come within this provision it must appear that the negligent act was done by the person while exercising acts of superintendence. (Larson v. Brooklyn Heights Railroad Co., 134 App. Div. 679.)

The only negligent act of the engineer attempted to be shown is his act in applying the air brake upon a signal from another. It was, therefore, the ordinary act which the engineer was employed to perform, namely, to run his locomotive. He was required to stop it on signal and he did stop it in the ordinary way. The plaintiff and the engineer were fellow-workmen, the engineer having the right to direct the plaintiff in some respects and in some respects the engineer being required to follow the signals and directions of the plaintiff. Plaintiff was not employed by the engineer, could not have been discharged by him. The engineer had no supervisory power over him except so far as he was required from time to time to do certain acts upon the locomotive or train. The plaintiff’s duties did not require him to be at the place where he was. The engineer did not direct him to be there. He selected the place for himself. The act of the engineer causing the engine to stop was that of a fellow-servant and was not the act of one exercising superintendence over the plaintiff. The case, therefore, is not within the statute.

We are satisfied that the locomotive stopped in the usual way, and there was nothing in his act unexpected or unusual, and defendant was not guilty of any negligence. If the plaintiff was injured, it was because the place upon which he was riding necessarily carried with it a certain amount of danger from which he has suffered.

The judgment should, therefore, be reversed upon the law and the facts and a new trial granted, with costs to the appellant to abide the event.

The court disapproves of the finding that the defendant was guilty of negligence causing the plaintiff’s injury and that the plaintiff was free from negligence.

All concurred.

Judgment and order reversed on law and facts and complaint dismissed, with costs. The court disapproves of the finding that the defendant was guilty of negligence causing plaintiff’s injury and that the plaintiff was free from contributory negligence, and the court finds that the defendant was not guilty of negligence and that the plaintiff was guilty of contributory negligence. 
      
       See Consol. Laws, chap. 31 [Laws of 1909, chap. 36], § 200, subd. 2, as amd. by Laws of 1910, chap. 352.— [Rep.
     