
    Martin Riccio, Plaintiff, v. The International Railway Company, Defendant.
    (Supreme Court, Erie Trial Term,
    June, 1909.)
    Master and servant—Master’s liability for injuries to servant: Fellow-servants — In general — Who are fellow-servants — Servants of railway companies — Street railways: Risks assumed by servant — Incompetency or negligence of fellow-servants.
    The provision of section 42a of the Railroad Law, addled in 1906, that persons engaged in the service of any railroad corporation, or who have, as a part of their duty, for the time being, physical control or direction of the movement of a car, are vice-principals of such corporation and are not fellow-servants of any injured employee, applies to street railways.
    Where, after said amendment, an employee of a street railway company was given free transportation upon its cars to and fro from his home to the place, where his services are rendered, and, in attempting to alight at Ms destination, was, by the sudden starting of the car, thrown to the pavement and injured, the conductor and motorman in charge of said car are not to be deemed co-employees of the plaintiff; and, where plaintiff recovers judgment in an action for personal injuries, a motion for a new trial upon the minutes, on the ground that if there was any negligence on the part of the conductor and motorman in charge of the car it was the negligence of co-employees, will be denied.
    Motioh for a new trial by the defendant upon the court’s minutes.
    Philip V. Fennelly, for plaintiff.
    Charles B. Sears, for defendant.
   Wheeler, J.

The jury rendered a verdict in favor of the plaintiff for personal injuries, claimed to have been received by him while alighting from one of defendant’s street oars, caused by the sudden starting of the car, by which it is alleged he was thrown to the pavement.

It appears from the evidence on behalf of the plaintiff that, for several days prior to the accident, he had been employed by the defendant as a laborer, engaged with others in constructing tracks in a neighboring street near the place of the accident; that he received one dollar and seventy-five cents a day for his labor, and was given in addition tickets entitling him to transportation to and from his home to his place of labor; that, on the morning in question, he boarded one of the defendant’s cars to go to his place of labor, and used one of the tickets in question, and that, in attempting to alight at his destination, he met with the accident for which this action was brought.

The defendant contends that, if there was any negligence on the part of the motorman or conductor in charge of the car in question, it was the negligence of coemployees, and the plaintiff cannot recover.

Unless the provisions of chapter 565 of the Laws of 1890, amending the general Railroad Law of the State, and commonly known as the Barnes Act, have altered the law as it previously existed, the defendant’s contention is correct; for, prior- to the passage of that act, it was held that, where a person in the employ of a railroad company travels back and forth from his home to the place where his services are rendered upon the cars of the company, and his transportation, free of charge, constituted part of the contract of service, while so traveling he is an employee, not a passenger, and for an injury to him, through the negligence of a coemployee, the company is not liable. Vick v. N. Y. C. & H. R. R. R. Co., 95 N. Y. 267.

Chapter 565 of the Laws of 1890, as amended, among other things, declares that, in addition to the liability of a railroad corporation existing by law, the persons engaged in the service of any railroad corporation, foreign or domestic, doing business in this state, or in the service of a receiver thereof, who are entrusted by such corporation or receiver, with the authority of superintendence, control or command of other persons in the employment of such corporation or receiver, or with the authority to direct or control any other employee in the performance of the duty of such employee, or who have, as a part of their duty, for the time being, physical control or direction of the movement of a signal, switch, locomotive engine, car, train or telegraph office, are vice-principals of such corporation or receiver, and are not fellow-servants of such injured or deceased employee."

If, therefore, this act relates to and governs street surface railways as well as steam commercial roads, then it follows that the rule of law formerly existing which precluded a recovery in a case like the one now under consideration has been modified by the statute, and the conductor and motorman in charge of the operation of the car from which the plaintiff fell ceased to be coemployees, and stand in the relation of a vice-principal to the plaintiff, and the plaintiff may recover notwithstanding.

In the recent case of Forton v. International Railway Company, 63 Misc. Rep. 237, we had occasion to pass upon this question, and held that the act in question applied to street surface railways as well as to steam railroads. We based our decision in that case upon the fact that the act in question formed a part of the general Railroad Law, and was made an added section to that act; that the general Railroad Law provided for the incorporation and management of street surface railways as well as those operated by steam; that sections 30 to 59, inclusive, of the laws relate to the “ construction, operation and management ” of railroad companies. We called attention to the provisions of section 42 of the act, which immediately preceded the amendment in question, known as section 42a, which section provides: “Any railroad corporation may employ any inhabitant of the state, of the age of twenty-one years, not addicted to the use of intoxicating liquors, as a car driver, conductor, motorman, or gripman, or in any other capacity, if fit and competent therefor. All applicants for positions as mortorman or gripman on any street surface railroad in this state shall be subjected to a thorough examination by the officers of the corporation as to their habits, physical ability and intelligence,” etc.

We, therefore, concluded that the amendment in question was intended to apply to and deal with street railways. We see no occasion for changing the view there expressed, and in this case hold that the act in question applies to the situation developed in this case, and that those in charge of the operation of the car from which the plaintiff was thrown when alighting are not to be deemed coemployees of the plaintiff, and that the rule of law stated in Vick v. N. Y. Central, 95 N. Y. 267, has been changed by the statute in question.

The defendant’s motion for a new trial is, therefore, denied.

Motion denied. 
      
       Section 42a, added by L. 1906, eh. 657.
     