
    John J. Bannon, Respondent, v. New York Central and Hudson River Railroad Company, Appellant.
    Fourth Department,
    May 2, 1906.
    Negligence —injury to member of repair gang on'railroad through, tie thrown by passing train— when negligence of acting foreman that of a fellow-servant —.failure to move for new trial— effect on appeal.
    There cgti be no recovery under the Employers’ Liability Act for an injury to a member of-a gang repairing a railroad bridge, caused by an old tie being thrown against him by an express train passing upon a track parallel -to that ' on which he Was working, although the tie was being drawn across the track by one designated by the foreman to take charge in his absence, since the act causing the injury was not one of superintendence, but that of a coemployee.
    It is immaterial that.the acting foreman failed to notify the plaintiff of the approach of the train as such omission w.as not the proximate cause of the accident.
    Bankok v. Bew York Central & H. B. B. B. Co.
    If a defendant fails to move for a new trial upon the minutes, and no order therefor is granted, only questions of law are raised on appeal and the evidence will be construed in plaintiff’s favor.
    Appeal by the defendant, the Bew York Central and Hudson Biver Bailroad 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 1st day of April, 190.5, upon the verdict of a jury for $750, rendered after a trial at the Onondaga Trial Term. .
    The action was commenced on the 6th day of February, 1904, under the Employers’ Liability Act, being chapter 600 of the Laws of 1902, to recover damages sustained by the plaintiff on account of injuries alleged to have been caused solely through, the negligence of the defendant. ,
    A. H. Cowie, for the appellant.
    
      John H. McCrahon, for the respondent.
   McLennan, P. J.:

Bo mention having been made by the defendant upon the minutes of the court for a new trial, and' no order having been entered refusing to grant such new trial, only questions of law are presented by this appeal, which is taken from the judgment only (Collier v. Collins, 172 N. Y. 101); and. the plaintiff is entitled to have the evidence construed most favorably to him to establish any fact necessary to support the judgment.

It is urged by-the appellant that the evidence so construed fails as matter of law to establish a cause of action in plaintiff’s favor.

On the 19th day of December, 1903, and for some time previous, the plaintiff was in defendant’s employ, engaged with a number of others in repairing bridges upon its railroad. He was a member of the bridge gang, so called, of which one Beilly was foreman. On the day of the accident Beilly was absent from the work and assumed to direct one Mickel to take charge of the men,, whether with the knowledge or consent of the defendant' does not appear. On the day in question the plaintiff with liis associates, including Mickel, was engaged in repairing a stone culvert which passed under defendant’s tracks near Oriskany, N. Y. * The material with which to make the repairs was placed between the' tracks near the culvert which was being repaired. In the progress of the work it became necessary to build fires upon such material in order tó thaw it so that it could be handled, and for that purpose the men went to work gathering material, old ties, etc., with which to make a fire. In the course of such work Mickel, who we will assume was in charge of the men in the absence of Beilly, himself assumed to attempt to draw a tie across one of the tracks for the purpose of putting it on the fire, the plaintiff at the time. being upon the track adjoining. Before Mickel got the tie entirely across, an express train, going at the .rate of fifty or sixty miles an liour,- struck the tie in such manner that it was thrown upon the adjoining track, struck the plaintiff and broke his leg, which is the injury for which he complains.

It is claimed that the defendant is liable upon two grounds: First, because Mickel, while acting as superintendent, attempted to move the tie in front of the approaching express train, and that he was • negligent in the performance of such work, and, second, because he failed to give warning of the approach of the express train. ,

As to the first ground upon which liability is sought to be predicated, we think it is apparent that the act of Mickel in attempting to move the tie across the track was not an act of superintendence, but was the act of a coemployee, for which the defendant is not liable. Liability for negligence in superintending is what is created by the statute, and not for the negligent act of a superintendent in no manner connected with liis duties as such. ' (Quinlan v. Lackawanna Steel Co., 107 App. Div. 176.)

As to the second ground upon which it is claimed the defendant is liable, to wit, the failure .of. Mickel to give warning of the approach of the express train, it is sufficient to say ,that that was not the proximate cause of the accident. The plaintiff was in a safe place except as it was rendered unsafe by the negligent act of Mickel. No train was approaching on the track upon which he was standing. If he had been notified that a train was approaching upon one track he would only have stepped upon another, and the defendant could not have anticipated that he would then be put in danger by another employee putting a tie in front of a moving train upon another track. The direct, proximate and sole cause of the accident was the negligent act of Miclcel in placing a tie in front of a rapidly moving express train, for which, as we have seen, the defendant was not liable, and not because of the fact that he failed to give warning of the approach of such train.

All concurred.

Judgment reversed and new trial ordered, with costs to the appellant to abide event, upon questions of law only.  