
    Charles W. Strader, Resp’t, v. New York, Lake Erie and Western Railroad Company, App’lt.
    
      (Supreme Court General Term, Second Department,
    
    
      Filed May 13, 1895.)
    
    Master and servant — Fellow.
    A switchman, employed by a railroad company, is not the fellow servant of trainmen of another company using the same track, where such switch-man is hired and paid by the former company and is under the exclusive direction of its superintendent, and the latter company has no voice in his-selection, and can neither discharge nor direct him in his work.
    Appeal from a judgment entered on a verdict in favor of and from an order a motion for a new trial.
    
      Lewis E. Carr, for app’lt; O'Neil & Royce, for resp’t.
   Brown, P. J.

This action was to recover damages for personal injuries alleged to have been caused by the defendant’s negligence. The plaintiff was a locomotive engineer employed by the Pennsylvania, Poughkeepsie & Boston Bailroad Company, and was injured while running a train over the defendant’s road near Orange Farm station. The accident was caused by an open switch, which permitted the plaintiff’s train to leave the main track, and the engine to be thrown down an embankment. The testimony introduced by the plaintiff permitted the conclusion by the jury that a short time prior to the accident the man who had charge of the switch had been engaged in making some repairs upon it, and that he had left it open; and the ground mainly relied upon by the appellant for a reversal of the judgment, and the only one which we deemed it necessary to consider, is that the switchman was a co-employe with the plaintiff, and for that reason the court' erred in denying a motion to dismiss the complaint. The accident occurred upon the Goshen & Deckertown Bailroad, which extended from Goshen to Pine Island, in the county of Orange. This road was leased to defendant, and was used by the Poughkeepsie & Boston Company under and pursurnt to an agreement with the defendant and the validity of the ruling of the trial court depends upon the construction to be given to this agreement. It bears date August 2, 1889, and granted to the Boston Company “ the right to use * * * the railroad track of the- Goshen & Deckertown Bail-road” jointly with the defendant. It provided that during the continuance of the agreement the Boston Company should pay to the defendant a stipulated proportion of the rental of the road, and the expense of maintaining and renewing the tracks, bridges, and the property used jointly by the two companies, including the wages of yard master, switchmen, train dispatchers, flagmen, and other servants. It further provided that “ the railroads and persons included hereunder shall be maintained and operated under the control of the superintendent of the Erie Company,” who in matters pertaining to the maintenance of the property was to be “under the exclusive direction of the Erie Company.” “The employes engaged in conducting the business hereunder being joint employes, and being paid by each party in proportion to the business done by such party, it is agreed that each party shall be responsible for the acts of such joint employes when engaged in that party’s business; and * * * the Erie Company shall incur no additional responsibility from the fact that such employes are hired or paid by it.” We are of the opinion that under this agreement the switchman or track walker who had the charge and care of the switch in question was not the servant of both companies. He was hired and paid by the defendant, and was under the exclusive direction of its superintendent. The Boston Company had no voice in his selection,. and could neither discharge him nor direct him in his work. The provision of the contract that each company should be responsible for the acts of the employes only when engaged in such company’s business had no relevancy to the accident to the plaintiff. The Boston Company had no control over the maintenance of the road. The duty devolved, under the contract, solely upon the defendant. The sole right which the Boston Company had was a right to use the tracks. The control of the road, and the maintenance of tracks, and their charge and control, remained in the defendant. The switchman was its servant, and for damages resulting from negligence the defendant was liable.

The judgment must be affirmed, with costs.  