
    Margaret E. McAuley, as Administratrix, etc., of Hugh McAuley, Deceased, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
    Third Department,
    January 8, 1906.
    STegligence — death of engine driver hy collision with derrick, of wrecking train — failure of wrecking crew to 'give warning — negligence of fellow-servant.
    The plaintiff’s intestate, while driving the defendant’s engine, was struck and killed by the arm of a derrick engaged in removing wreckage from an adjoining track, which arm extended over the track upon which the intestate was driving, which was in other respects unobstructed and safe. The negligence charged was the failure of the crew of the wrecking train to flag the engine which plaintiff’s intestate was driving.
    
      Held, that assuming said negligence, it was that of the intestate’s fellow-servants, for which the defendant was not liable;
    That the fact that the flagman was employed on the wrecking train did not make him the master’s alter erjo.
    
    Appeal by the defendant, The Hew York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 7th day of April, 1905, upon the verdict of a jury for $6,000,' and also from an order bearing date the 3d day of April, 1905, and entered in said clerk’s office denying the defendant’s motion for a new trial made upon the minutes.
    The plaintiff’s intestate was a passenger engineer in the employ of the defendant. On the morning of February 27, 1901, lie received orders to take a light engine and train crew and run west on track 2 on defendant’s road from 'Albany to Rotterdam Junction. Such run was to be -made as a third section of train-37. The first section of such train, consisting of a regular passenger train, left Albany at the usual time, and passed through Schenectady at three-twelve that morning. A wreck had occurred on track 4 at a curve in the road about one and three-fourths miles west of Schenectady, and the wrecking train was ordered out and proceeded westward fi-orn Albany to Schenectady on track 2, and thence on track 3 to the place of the wreck, following such Erst section and passing Schenectady at three-thirty-five. At the place of the wreck there were four tracks, numbered from the south, viz.: 1, east-bound passenger ; 2, west-bound passenger; 3, west-bound freight; 4, east-bound freight. Such wreck did not obstruct track 2, but in the work of
    removing the wreckage from track 4 the crane of the steam derrick on the wrecking train projected over track 2 and caused a temporary obstruction to trains passing on such track. A second section of train 37, consisting also of only ail engine, with a train crew1, followed the wrecking train on orders, similar to those received by plaintiff’s intestate, and passed through Schenectady af four-eight. Such engine was flagged and stopped by Wrafter, a trainman from the wrecking train, after which it continued westward on track 2 past the wrecking train without mishap. The engine which was bqing run by plaintiff’s intestate followed ten minutes later at the rate of twenty-five or thirty miles an hour, but bollided, however, with such crane, and the plaintiff’s intestate thereby received in juries from the effects of which he died on the following day. The plaintiff thereupon brought this action to recover for the loss -thus ‘sustained, claiming that such death occurred through the negligence of the flagman Wrafter in not also giving to deceased a proper signal of danger. The jury rendered a verdict in favor of the plaintiff for $6,000, and from the judgment entered thereon, and from an order denying defendant’s motion for a new trial made on the minutes, this appeal is taken.
    
      William P. Rudd, for the appellant.
    
      Andrew J. Nellis and Pierre E. Du Bois, for the respondent.
   Parker, P. J.:

If it be conceded that this accident happened by reason of Wrafter’s negligent omission to give the danger signal to McAuley, yet the question remains whether the defendant is responsible for' that negligence. It is conceded that it would not be 'so .responsible if Wrafter is to be considered a coemployee with McAuley but the plaintiff claims that because W rafter was- employed upon the train that hauled the wrecking car, and which was in attendance upon such car only, and because such car with its “ wrecking crew” was engaged only in the clearing of wrecks as they occurred upon the roád, he .should not be deemed a eoemployee with an engineer who was engaged in hauling the defendant’s freight or passenger trains. His theory, as I understand it, is that the defendant’s' duty requires it to furnish to all its employees a safe and unobstructed roadbed and tracks over which they ai;e required to run; that this wrecking train is one of the means which the defendant uses in performing that duty, but inasmuch as the defendant cannot delegate that duty to any one so as to relieve itself from responsibility for its not being done, those that are so employed must be deemed to be working in its place, must be considered while ■ performing such work as representing it, and that, therefore, .Wrafter, while so at work, was the alter ego of the defendant, rather than a coemployee with McAuley.

The obstruction that this wrecking train wai sent out to remove was upon track Ho. 4 only. It did not in any way interfere with running over track Ho.. 2. But in the operation of removing such obstruction from Ho. 4 it happened that the boom of the derrick, at times, would extend over and temporarily obstruct Ho. 2 ; and it was against such temporary obstruction that McAuley should have been warned.

It is conceded by plaintiff’s counsel that if a train running on track Ho. 1 had run off and obstructed Ho. 2, and the flagman on such derailed train had omitted to go out and warn McAuley, who was running west on track Ho. 2, against such obstruction, the defendant would not be responsible to McAuley for such neglect. Concededly such flagman would be a coemployee with McAuley. Concededly, in such case, the defendant would have fulfilled its full measure of responsibility if it provided competent and safe trainmen, promulgated proper rules and furnished all; the appliances necessary to enable the flagman to go out and give the signal of danger in such a case required. Concededly, in such case, the defendant might delegate the duty of warning McAuley to the flagman of such train.

Why should a different rule prevail in the case before us % ■ Ho reason is apparent and none is given, except the fictitious one that the company must be deemed to be itself in charge of the Avrecking work, and hence must itself give notice that it is about to obstruct Ho. 2. I do not agree with plaintiff’s counsel in this claim.

The rule that requires defendant to furnish a safe track for its employees to run over, gbes to this extent only, that it shall not require them to work upon a track that it'knows or, in the exercise of a reasonable inspection, ought to know is in an unsafe condition. If when it learned that track No. 4 was obstructed and unsafe, it at once withdrew its engines from running oyer it, it neglected no duty it owed them although it entirely omitted to repair the same. Unless McAuley was required to fun upon track 4, he had no personal interest in having it repaired, and could make no complaint against defendant for not doing so. The defendant, therefore, in making such repairs was not performing any special duty it owed to McAuley or to any of its employees. It was at work in its own interest. The road cannot be operated without wrecks occurring, nor unless they are promptly cleared up when they do occur, and the wrecking train is, therefore, as much, needed in the •work of carrying on its transportation business as are its freight and. passenger trains.

When the defendant sent out this wrecking'train, therefore, it did so, not because it needed it to-perform any duty it owed to its' employees, but that it might have the benefit of track No. 4 to use in its transportation business ; and the men who had charge of. it bore the same relation towards defendant while engaged in such work' that they would have borne had they been operating a freight or a passenger train. In each ease they would have been at work for a similar purpose, to wit, assisting defendant in. the daily operation of its road. Hence the flagman on the wrecking train no more represented the master, and was no less a coemployee with McAuley, than was the flagman, on the derailed train above referred to. Nor is it possible to conceive how any of the employees on such wrecking train could be performing, in the defendant’s place, any such duty as the law forbids the master to delegate. They were engaged in clearing track No. 4 so it could lie used, made safe if you please. But there is no rule forbidding" the defendant from delegating the performance of that work to its employees. Necessarily such work must be so performed, but that employment does not impose, nor assume tó impose, upon them any authority to direct other employees when or where to work, or to require any service whatever from them. Hence they have no connection whatever with-the duty that defendant is forbidden to delegate, and as to that duty do not in any manner represent it. Clearly, for any negligent act committed by any one of sucli “ wrecking crew ” while so employed the defendant is responsible only under the rule of respondeat superior,. I conclude, therefore, that the plaintiff’s claim that the flagman Wrafter was performing a work that the defendant could not delegate is not correct.

This case was in all its essentials similar to that of a derailment. The obstruction causing the in jury was the occasional and temporary swinging of the boom onto track Mo. 2, an obstruction that was not known or anticipated by the defendant when McAuley left Schenectady and of which he could not at that time have been notified. The same precautions to notify him of such obstruction were taken by defendant as are required in the case of a derailed train, and I can discover no reason why ■ the same rule as to defendant’s responsibility should not apply to it.

The question as to who are, and who are not, coemployees arises in such an infinite number of instances that it is not possible to reconcile all the decisions upon that subject, and I do not attempt to cite any case which is in all its particulars a controlling one. I do not, however, find, and I am not cited to any that, in my judgment, is controlling against the conclusion which I have reached. On the. contrary, the law upon such subject as settled in this State is entirely in harmony therewith.

Wraftef was a coemployee with McAuley in the business of operating defendant’s road, and no negligence other than his has been proved against the defendant. For such negligence the defendant is not responsible, and,'therefore, this action cannot be maintained.

The judgment and order should be reversed and a new trial granted, with costs to' appellant to abide event.

All concurred.

Judgment- and order reversed and new trial granted, costs to appellant to abide the event.  