
    Arthur H. Breed, Respondent, v. Lehigh Valley Railroad Company, Appellant.
    Fourth Department,
    March 3, 1909.
    Railroad — negligence—-when locomotive engineer is vice-principal — section 42a, Railroad Law, construed — injury to hrakeman by sudden starting of train — contributory negligence.
    Although at common law a locomotive engineer is the fellow-servant of a brakeman, he is made a vice-principal of the railroad by section 42a of the Railroad ■Law while in physical control or direction of the movements of a locomotive engine, car or train.
    Hence, where a hrakeman standing on the top of a freight car signaled the locomotive engineer to draw ahead slowly, but the engineer, disregarding the signal, started so suddenly as to throw the hrakeman from the end of the car, his act is chargeable to the master.
    Under such circumstances, the hrakeman cannot be considered as the person having control of the movements of the train.
    Where in such action it appears that at the time of giving the signal to proceed slowly, the brakeman had stepped back six feet from the rear end of the car, he is not chargeable with contributory negligence as a matter of law.
    Appeal by the defendant, the Lehigh Valley Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 24th day of April, 1908, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 23d day of April, 1908, denying the defendant’s motion for a new trial made upon the minutes.
    
      Ceylon H. Lewis and Will B. Crowley, for the appellant.
    
      Frank C. Sargent, for the respondent.
   Williams, J.:

The judgment and order should be affirmed, with costs.

The action was brought to recover damages for personal injuries alleged to have resulted from defendant’s negligence. The action was tried as one at common law, but the plaintiff claimed the benefit of the Barnes Act, so called, section 42a of the Railroad Law (Laws of 1890, chap. 565, added by Laws of 1906, chap. 657).

The negligence claimed was that of the engineer of the train in starting his engine too quickly, when the signal to him was to start slowly. The plaintiff was a brakeman, was standing on the top of a freight caz-, and was thrown to the ground by an extraordinaiy jerk given to the car, and a car wheel passed over his arm, and so crashed it as to require amputation. The plaintiff was standing at the rear end of the fourth car, looking down at another brakeman who was standing on the bumper of the fifth caz*, releasing the coupling between the two cars. When the- couplers parted the plaintiff stepped back six feet away from the rear of the car, and gave the engineer a signal to draw ahead slowly. The' engineer disregarded this signal, and started so suddenly as to throw plaintiff off the end of the car.

First. The sole negligence alleged against the defendant was that of the engineer. At common law he would be a fellow-servant of plaintiff, and no recovery could be had for such negligence. The Barnes Act, however, provides that in actions against railroad companies by their employees for injuries received in their service, persons who have as a part of their duty, for the time being, physical control or diz-ection of the movement of a locomotive engine, car or train, are vice-principals of the railroad coznpanies, and not fellow-servants of such eznployees.

We are unable to see why this act is not applicable to the present case, and why it does not permit a recovery for plaintiff’s injuries, so far as the element of defendant’s negligence is concerned. The trial court took this view of the case, and submitted faii’ly to the juzy the questions whether the engineer was guilty of negligence in the manner of starting the engine and train. We do not take the view entertained by defendant’s cozzusel, that it was the plaintiff, the brakeman, rather than the engineer who was in control of the movements' of the engine and tz'ain. He gave signals to the engineer, it is true, but the engineer was not under his control, was not bound to obey his directions. We think the trial court committed no error in the submission of this branch of the case to the j™7-

' Second. The question óf conti'ibutory negligence was carefully .and correctly submitted to the jury by the trial court. Among other things they were told that they must find, in order to render a verdict for- the plaintiff, that the injury.which he received was caused by something outside -bf the ordinary risks and dangers attendant upon the operation of a freight train; that whatever jerking or rapidity of motion was proper or necessary to accomplish the objé.ct they-had in view, therefore, the plaintiff had no right to complain-of; that it must he something more than the ordinary operation of a locomotive and cars which afforded him any basis for a recovery. There was considerable disagreement as to how; the train was 'started,, and libw much jerking there Was, the plaintiff testifying that the jerking was so extraordinary as to throw him six feet over the end of the car without striking it. Upon the facts, -as claimed by the plaintiff he was using all the care which any prudent man would use who understood about the usual and ordinary jerking of cars in the operation of a freight train, and nevertheless the accident occurred as he detailed it. ‘

We think the verdict under evidence and the charge, was one that -the jury was authorized to render, and that it should not be set aside as contrary to the evidence, under the well-established rules: .applicable to. such cases. -

The judgment and order should, -therefore, be affirmed.

All concurred.

Judgment and order affirmed, with costs.  