
    (119 App. Div. 95)
    DE SANTES v. NEW YORK, N. H. & H. R. CO.
    (Supreme Court, Appellate Division, Second Department.
    April 19, 1907.)
    Master and Servant—Fellow Servants.
    One employed in unloading rails from a train was a fellow servant of the engineer. ”
    [Ed. Note.—For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 501, 503.]
    Appeal from Dutchess County Court.
    Action by Paolo De Santes against the New York, New Haven & Hartford Railroad Company. Judgment for plaintiff. Defendant appeals. Reversed.
    Argued before WOODWARD, JENICS, GAYNOR, and RICH, JJ..
    W. C. Anthony, for appellant.
    Elijah T. Russell, for respondent.
   GAYNOR, J.

The defendant was distributing rails along its track with a gang of men of whom the plaintiff was one—-unloading them from a train of platform cars, which were enclosed by low sidings and ends, however. As the train was about to be started, the men got aboard the cars. The plaintiff sat on the end of one of the cars with his feet on the floor. The rails were shorter than the car, and lacked a foot or eighteen inches of reaching the end where he sat. The engineer backed his engine up against the train with such violence when he went to couple it that the rails shoved or skidded along the floor and caught the plaintiff’s leg and broke it.

The case was sent to the jury under a charge that pointed out no negligence that could be attributed to the defendant; the jury were left to do as they pleased. The negligence of the engineer was concededly that of a fellow workman, and that is all there is of the case.

The judgment should be reversed.

Judgment reversed, and new trial ordered; costs to abide tbe event. AIL concur.  