
    Harry Wirth, Appellant, v. General Railway Signal Company, Respondent.
    First Department,
    February 4, 1910.
    Master and servant — negligence—when employee of railroad servant of independent contractor—negligence of fellow-servant.
    An employee of a railroad company assigned by it to assist an independent contractor installing a signal system in order to learn its operation is, for the time being, a servant of the contractor and cannot recover for injuries received by reason of the negligence of the contractor’s servant.
    Appeal -by the plaintiff, Harry Wirth, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Hew York bn the 29th day of March, 1909, upon the dismissal of the complaint by direction of the court at the close of the plaintiff’s case on a trial at the Hew York Trial Term.
    
      Richard J. Donovan and Herbert D. Oohen of counsel, for the appellant.
    
      Joseph M. Allen, for the respondént.
   Miller, J.:

The defendant was engaged as an independent contractor in the installation of an electric signal system for the Hew York Central Railroad Company. The plaintiff was, and for four and a half years prior to the accident had been, in the general employ of the railroad as a Signal repair man, charged with the duty of inspecting and repairing switches and signals, and he says that he knew how such machines operated and was familiar with their fixed and movable points. At the time of the accident the plaintiff was, and for two weeks prior thereto had been, working with the defendant’s men, assisting in the work of putting in the new system. He says that he was doing that for the purpose of learning the system and how to operate it. He and the foreman, one Edwards, were undertaking to adjust a switch apparatus which had been put in, but evidently did not work properly. Edwards was “ taking up what they call lost motion on a cross bar,” and requested the plaintiff to drop some oil on the different parts of the switch. In/doing that the plaintiff got his foot between a movable bar, styled the “ equalizer bar,” and a tie, when a towerman, one of the defendant’s servants, carelessly, because without a signal to do so, threw the switch, thereby causing the plaintiff’s foot to be crushed between the' bar aiid the tie. It is evident that the complaint was dismissed on the ground that the plaintiff and the towerman were fellow-servants ; and thus we have the question presented whether a servant in the general employ of one person is to be deemed the servant of another in respect of a particular transaction.

The answer contained an admission in the following terms: Said defendant admits that on or about the 1st day of November, 1906, plaintiff was employed by the Hew York Central & Hudson R. R. Co., and -was upon the premises of said railroad company by permission and invitation of said railroad company for the purpose of watching and inspecting the operation of a certain signal system mentioned and referred to in said paragraph marked Fourth ’ in said complaint, at and near a certain tower known as tower ‘ D ’ thereof.” We start then with two things established: (a) The general employment of the plaintiff by the railroad company; (b) the watching and inspecting of the signal system being installed by the defendant as a part of his duties under his general employment. From the fact that he had worked with the defendant’s men for two weeks, it may be inferred that the defendant at least assented to his doing that for the purpose of learning how to operate the system. It is necessary now to quote somewhat liberally from the plaintiff’s testimony. He said : “ I was working with these people [referring to the employees of the defendant]. * * * I. was under his [Edwards’] charge at the time. * * * Q. For about two weeks, Mr. Wirth, you had been with Mr. Ware, had you not? A. Yes, sir; traveling around with different men of the Signal Company. Q. Well, for about two weeks you had been with Mr. Ware? A. Ho, sir, not two weeks. I was with three men ini two weeks. I was with Ware, Edwards and Mr. Wade. I had been with Mr. Ware probably four or five days,, no longer. I was helping him; doing anything I was told. I was" learning the new system they were installing. I had been examining - these switches — switch machines. * . * * I was there to learn the operation of this switch. I was going to be what is called a switch maintainer, and that has since been my position, and it was my duty to learn the working and care of the switch ; to learn how it operated -—the different movements and how to oil it. * * * Q. At this time were you under the instructions of Mr. Edwards? A. Ho, sir; I was traveling with Mr. Ware. At this previous time I was outside helping Mr. Ware—. this afternoon, or Mr. Edwards rather, I was-' working with him ■ that afternoon, because there was nothing to do inside for me.- He gave me instructions as to what to do just the same as if I was on their payroll. I was working right along with him. Whatever- he said I did, and he told me to oil the fish plates. He asked ine if I would mind dropping some oil around on the different parts of the switch, which I did;” It is thus, established that the plaintiff was doing the defendant’s work under the direction -and control of its foreman, precisely as though he was employed and paid by it. He could have learned by standing by and watching the work, as the answer admits he was doing ; and no doubt if, while doing that and exercising due care himself, he had been injured by the negligence of one of the defendant’s servants the defendant would have been liable, as it would have been for an injury received -by him in like manner "while attempting to operate the machine for the sole purpose of learning how to do it, provided the defendant had undertaken to instruct him in that way. But his testimony shows that he was actually doing the defendant’s work in installing the system and was not merely receiving instruction. His object in doing that work was to learn, and I am unable to see how the case is different from what it would have been if he had been working for pay or if his general employer, wishing to hasten, the work, had temporarily loaned him to the defendant. It is not necessary to go as far as that, however, in deciding this case, and in expressing that view I do not speak for my associates.' The question always is what was the relation in respect of the particular transaction out of which the injury arose. The plaintiff’s testimony makes it plain that, at the time of the injury, he was doing work for the sole purpose of helping the foreman, Edwards, to adjust the apparatus, .and in doing that got his foot in a position where it was injured. Edwards was trying out the switch, trying to correct some difficulty with it, and to see if that would help he asked the plaintiff if he would “ mind dropping some oil around on the different parts.”. It is not pretended that the plaintiff needed to learn.how to do that. He did it in obedience to Edwards’ request for the sole purpose of assisting him in doing the defendant’s work, and at the best in respect of that transaction he was a volunteer, gratuitously assisting the defendant’s servant. In such case it does not matter, so far as liability of the master to the volunteer is concerned, whether the service is rendered pursuant to a request of the servant or with the master’s authority. (S. & R. Neg. [5th ed.] § 182; and see Olive v. Whitney Marble Co., 103 N. Y. 292.) Unless the plaintiff was temporarily assisting the defendant’s men in the doing of its work there was. no excuse for his putting his foot in a two-inch space where a movable bar might cru'sh it. As a mere bystander, or onlooker by invitation, he could not escape the charge of contributory negligence.

The question is who exercised or had the right to exercise control? Whose will did the servant represent? There can be no doubt that in oiling the machinery the plaintiff put himself under the control and direction of the defendant’s foreman, and for the time being represented the will of the defendant, if. we assume that the act was authorized by the defendant, which is the most favorable view to the plaintiff to take of the case. He was, therefore, the defendant’s servant in respect of the particular transaction resulting in his injury, even if we do not go so far as‘to hold that he was its sérvant during the entire two weeks that he was assisting its men in doing its work. (Wyllie v. Palmer, 137 N. Y. 248; McInerney v. D. & H. Canal Co., 151 id. 411; Higgins v. Western Union Telegraph Co., 156 id. 75; S. & R. Neg. [5th ed.] § 160 et seg.) The case of Murray v. Dwight (161 N. Y. 301), principally, relied upon by the appellant, is plainly distinguishable. In that case the plaintiff remained the servant of the truckman, the independent contractor, precisely as though instead of hoisting the goods from a lower to the upper floor of a building, lie had been engaged to cart them from one place to another.

The judgment should be affirmed, with costs.

Ingraham, P. J., Laughlin, Clarke and Scott, JJ., concurred.

Judgment affirmed, with costs.  