
    David Sexton, as Administrator, etc., of Grace Sexton, Deceased, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.
    Fourth Department,
    July 12, 1906.
    Master and servant — liability of railroad company for injury from operation of engine which it has loaned to another company.
    Where a railroad company loans an engine and crew for permanent use in shifting cars about the private yards of a blast furnace company under the control and instructions of the foreman of the furnace company, it is not liable for an injury resulting from the operation of the engine although it pays the crews.
    Appeal by the plaintiff, David Sexton, as administrator, etc., of Grace Sexton, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Monroe on the 2d day of February, 1905, upon the dismissal of the complaint by direction of the court after a trial at the Monroe Trial Term.
    
      George H. Harris, for the appellant.
    
      Daniel M. Beach, for the respondent.
   Nash, J.:

Grace Sexton, plaintiff’s intestate, a young girl sixteen years of age, while walking on a railroad track in the yard of the blast furnace of the Corrigan & McKinney Company, at Charlotte, N. Y., was run down by a backing engine belonging to the defendant, and killed. The accident occurred July 11, 1903, at about a quarter to twelve o’clock noon.

The deceased, for upwards of ten months preceding the accident, had been engaged in the duty on alternate days with a sister of carrying to a brother employed in the blast furnace his dinner, and was returning from having carried it to him on the occasion of .the accident.

The yards of the Corrigan & McKinney Company were extensive. A main switch led from the Charlotte branch of the New York Central across the track of the Rome, Watertown and Ogdensburg railroad into the Corrigan yard, where it branched out into eight or ten switches, entirely upon the premises of and used exclusively by the Corrigan & McKinney Company.

The deceased at the time she was struck by the engine was walking on the track on the main switch. She had taken a path which led to the main switch, and before going upon the switch she turned" her head to the north, the direction where the engine was standing on what was known as the “coke track,” about two hundred and fifty feet distant, from which point she walked some sixty or seventy feet on the track before being struck by the engine. No bell was rung from the time the deceased looked in that direction, and no warning was given of the approach of the engine before the deceased was run down. Neither the engineer nor any of the engine crew knew that she had been struck until after the engine was stopped and her body was found under the tender. The engineer was watching as he ran the engine to see,if any switch was placed wrong, and observing a semaphore at the Eome, Watertown and Ogdensburg and New York Central tracks to see whether or not it was safe to cross the Eome, Watertown and Ogdensburg tracks. The engine crew had orders to ring the bell when the engine was started and while running in the yard where men were at work. The men were-not working in the part of the yard where the accident occurred.

The engine had been employed in the work of the Corrigan & McKinney Company exclusively for some weeks prior to the accident. It belonged to the defendant and the crew were hired and paid by it, but subject to the orders of the Corrigan Company as to the work they were to do. In the operation of its business at the time of the accident the Corrigan Company employed two locomotives, one of which belonged to the company and the other to the" New York Central railroad. The Corrigan engine was used to move kettles from the furnace, containing residue from the iron. The New York Central engine” and crew were loaned to the Corrigan Company for its use for shifting cars and yard work and taking cars to and from the yard loaded with freight, usually coke — from the New York Central railroad, the Buffalo, Bochester and Pittsburg and Eome, Watertown and Ogdensburg railroads. The crew, although hired and paid by the defendant, were under the direction of the yard foreman of the Corrigan Company, to whom they reported in the morning, and to whom they looked for all instructions in regard to the work each day. At the time of the accident the crew had placed some cars for unloading coke, and were taking the engine to a place across the Eome, Watertown and Ogdensburg tracks to leave it and get their dinner.

The circumstances bring the case directly within the principle of McInerney v. Delaware & Hudson Canal Co. (151 N. Y. 411), the head note of which is as follows: “ When á railroad company’s engine crew run tlieir engine upon a switch track on the premises of and owned by a private shipper of freight, at the. request of the shipper, to couple and move cars for him on his track, under his orders, they discharge their duty to all his regular employees by notifying the shipper of their readiness to proceed with his work, and while engaged therein they are in law his servants; and when the shipper has been so notified, the railroad company will not be liable for a personal injury .sustained by a regular employee of the shipper, caused by the omission of the engine crew to notify suck employee of their intention to couple a car about which he was working.”

In other words, the railroad company was held not liable under the circumstances for an injury to the plaintiff caused by the negligent act of its employees, who at the time of the accident were temporarily in the employ of and servants of the private shipper.’ Here the case for the non-liability of the railroad company is much stronger for the defendant. Instead of a single instance of the employment of the engine and crew,of the railroad company to do the work of the shipper temporarily, the employment of the defendant’s engine and crew was permanent. The defendant for the period in which it loaned the use of its engine and crew surrendered the entire control of its employees to the Corrigan Opmpany. The x railroad company could not, during such use, direct its employees as to the manner in which the work for the Corrigan Company should be performed, or make rules and regulations for tlieir guidance. These were things entirely within the charge and control of the foreman of the Corrigan Company directing the work and the manner in which it should be performed.

As was said by Judge O’Brien, in Higgins v. Western Union Telegraph Co. (156 N. Y. 75), when the defendant’s servant was temporarily operating an elevator under the direction of the plaintiff : “ Beyond the scope of his employment the servant is as much a stranger to his master as any third person, and the act of the servant not done in the execution of the service for which he was engaged cannot be regarded as the act of the master. And if the servant step aside from his master’s business, for however short a time, to do an act not connected with such business, the relation of master and servant is for the time suspended, and an act of the servant during such interval is not to be attributed to the master. Here the relation of master and servant between the conductor of the elevator and the defendant was suspended during the time that he was doing the work of the contractor in moving the plaintiff up and down in the shaft.”

Other questions are presented, but in the view we take of the case it is not deemed necessary to discuss or pass upon them.

The judgment and order should be affirmed.

All concurred, except McLennan, P. J., who dissented.

Judgment and order affirmed, with costs.  