
    George Dalzell, Respondent, v. New York, New Haven and Hartford Railroad Company, Appellant.
    Second Department,
    January 14, 1910.
    Master and servant—negligence — injury to person moving electric locomotives — res ipsa loquitur — doctrine does not apply where master has no control—independent contractor — proximate cause.
    In order to charge a defendant with liability'under the rule of res ipsa loquitur it must he shown that the defendant was in entire control of the operations, machinery or appliances which caused the injury.
    Thus, an employee of an electric company which had manufactured electric locomotives for a railroad, but had not yet turned them over, cannot hold the railroad for the alleged negligence of a person employed by it, but who, at the time of the accident, was engaged in moving locomotives from a round house wholly under the direction of the electric company.
    Under such circumstances to charge the railroad under the doctrine of res ipsa loquitur it is necessary to show more than the mere fact that the person causing the injury was in its general employ; it must he shown that he was acting in the discharge of his master’s business.
    Where the accident happened not by reason of the fact that the employee of the railroad was negligent in operating one of the electric motors under the direction of the electric company, but rather because another person employed by the electric company had not properly coupled the engine to another engine which it was hauling, the latter act was the proximate cause of the accident and the railroad is not liable.
    Hirschberg, P. J., dissented.
    Appeal by the defendant, the New York, New Haven and Hartford 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 Westchester on the 6th day of May, 1909, upon the verdict of a jury for $10,000, and also from an order entered in - said clerk’s office on the 21st day'of May, 1909, denying the defendant’s motion for a new trial made upon the minutes.'
    
      I. R. Oeland [Nathaniel S. Corwin and Charles M. Sheafe, Jr., with him on the brief], for the appellant.
    
      Michael J. Tierney, for the respondent.
   Woodward, J.:

This is an action to recover for personal injuries. The plaintiff was employed by the Westinghouse Electric and Manufacturing Company, which was engaged in supplying and installing an electric system of transportation for the Hew York, Hew Haven and Hartford RailroadCompany between Woodlawn and Stamford. At Stamford, in the State of Connecticut, the roundhouse or repair shop of the defendant company had been divided into two sections, and that portion used for the housing of the electric engines or motors was given into the control of the Westinghouse Company, which still owned the motors, they not having been turned over to the defendant under the contract for installation. The evidence was undisputed that the defendant had no control over the movement of the motors or cars in the repair shop, these being in the control of theWestinghouse Company. On the day of the accident complained of, Henry Day, foreman for the Westinghouse Company, desiring to change the position of motors from one track to another, in the practical work under way, gave directions to one McGuire, who is described as a • hostler, for the movement. There were two motors standing on the track, one of them known as a dead motor, for the reason that it was not in condition, for some reason, to make use of the electric current in its movements. This dead motor appears to have been nearest the front opening of the repair shop, and the live motor was immediately in front of this dead one. The live motor was backed out, and one James O’Brien testifies that he was an emjiloyee of the Westinghouse Company, his immediate. foreman being Mr. Day, and that he joined “the two cars together; the electric locomotive together, one of which drifted away and struck Dalzell’s tower car.” On cross-examination he says: “ I did not buckle those engines' up tight. I did couple them together. 1 did couple them properly.” The plaintiff contends' that these engines or motors were not coupled together, but this testimony on the part of O’Brien is not contradicted, and if they were not coupled it is certain that he was expected/to do this coupling, and that if he did not do it, or if he did it improperly, it was negligence on his part and not the negligence of this defendant. The live motor being backed out, supposedly coupled to the dead motor, was backed about 1,000 feet from the repair shop to a-'switch, in the manner ordinarily prevailing, and then the live motor was reversed and started in upon another track. At this time it was discovered that the dead motor, instead of following the live one, had continued on down the track and had collided with a .tower car standing upon another track, overturning it and throwing the plaintiff to the ground, where he sustained a compound fracture of one of his legs, for which-the jury-has awarded him a verdict of $10,000.

The case went to the jury upon the.theory that McGuire was the servant of the defendant, and that the accident having happened, under circumstances which would not ordinarily happen except for the negligence of some one, it was the duty of the defendant to explain how the accident happened, and that it was for the jury to say whether the explanation was such as to relieve the defendant from the responsibility for the accident. This Was squarely charged by the court, and the record does not show that an exception survives, so that it is not necessary to determine here whether the rule of res ipsa loquitur should prevail in a case of this character. But assuming this rule to apply, it is necessary always to prove facts and circumstances sufficient to show that the defendant is called upon to explain the mere fact that an accident -has happened, and that the plaintiff charges some particular person or corporation with negligence is not sufficient to place the burden of explaining upon such person or corporation ; it must be shown that such party is in entire control of the operations, machinery and appliances causing the injury, and in this case there is no such evidence. It is true that there is some testimony tending to show that McGuire was in the general employ of the defendant, but there is not a particle of evidence to show that the defendant had any right or authority to. move one of these engines in the round house or repair shop, or that McGuire was engaged'in the work of the defendant in moving them. On the contrary, the evidence is undisputed that McGuire was operating the engines under the direction of Mr. Day, the foreman in charge of the Westinghouse Company’s operations, and that the roundhouse, where these engines were kept, was, in so far as these, engines were concerned, in the entire control of the Westinghouse Company, and that the defendant had no power to direct the movement of cars in the repair shop, such cara or engines being still the property of the Westinghouse Company. Under similar circumstances the Court of Appeals held in Higgins v. Western Union Telegraph Co. (156 N. Y. 75) that the servant of a defendant, acting for and under the orders of an independent contractor, was not the servant of such master, although receiving his compensation from him. ■ In that case the plaintiff was in jured by the negligent act of a person operating an elevator, and who was the general servant of the defendant.. The plaintiff in that case¿ as in this, was the servant of the contractor for the repair of the building, including the furnishing of the elevator itself. The contractor had placed the elevators in the building some time before the accident, and they were in use at times by the defendant to carry passengers, and by the contractor for purposes of his own. But he had not completed the don tract and had not turned over the building, with the elevators, to the defendant, just as the plaintiff’s employer in this case had not turned over the engines or surrendered control of this portion of the roundhouse to the defendant. They were still, for all practical purposes, under the control of the contractor, who had a right to use them for the purposes of carrying materials and workmen from the lower to the higher floors. The plaintiff’s master wanted to use the elevator on the day of the accident as a platform upon which to stand while plastering the shaft in which it had been placed, and proc.ui’ed the defendant’s general servant to operate it by moving it up and down through the shaft for the .convenience of the plaintiff engaged in the work of plastering. The injury to the plaintiff occurred wliile the elevator was being used for this purpose, and, as the proof tended to show, by the negligent act of the operator. The court held that the operator, at the time of the accident, was hot engaged in his general master’s work, but was acting Under the orders of the plaintiff and in a different capacity. Com-' menting on this state of facts the court, in Murray v. Dwight (161 N. Y. 301, 308), say : “ It is apparent, I think, that the plaintiff in that case occupied a different relation to the person moving the elevator than he would had the injury occurred while being conveyed as a passenger in the elevator to his place of duty on an upper floor and while the elevator was being used as a passenger elevator, and while it was in law the defendant’s elevator and in charge and control of its servants.”

If we are right in this position, it was.necessary to raise the inference or presumption of negligence on the part of the'defendant to show more than the mere fact that he was in the general employ of the defendant; it should have been shown that he was in the discharge of the master’s business. The undisputed evidence here is that he was not in the discharge of the defendant’s business; he was acting under the directions of the Westinghouse Company’s foreman, and the Westinghouse Company was the only one having any power or authority to direct in reference to the movement of these engines, which were still the property of that company. The negligence, therefore, of McGuire was not the negli-. gence of the defendant, but the negligence of a fellow-servant, and this question was raised by the defendant’s motion to dismiss the complaint at the close of the evidence.

But' we are not convinced that the negligence was that of McGuire. There is no suggestion that there was any fault in the manner in which the live ■ engine was operated; the accident is , i claimed by the plaintiff to have occurred because the dead engine was not coupled to the live engine; but if this is the case, the neglect was on thé part of O’Brien, who was supposed to have made the coupling, and who declares* without contradiction in the evidence, that he did make the coupling, though he says he did not buckle the engines up tight. Here seems to have been the proximate cause of the accident, and there is no dispute that O’Brien was employed, in common with the plaintiff,-by the Westinghouse Company, so that the defendant is not liable for this act of negligence.

We are of opinion that the case was lacking in evidence to show negligence on the part of the defendant, and that for this reason the judgment and order appealed from should be reversed and a new trial granted, costs to abide.-the event.

Burr, Thomas and Rich, JJ., concurred; Hirschberg, P. J., dissented.

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