
    Richard Murphy, Resp't, v. The New York Central and Hudson River Railroad Company, App'lt.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed April, 1887.)
    
    1. Negligence—Contributory negligence—Questions for jury.
    In an action to recover damages for injuries alleged to have been received through the defendant’s negligence. Held, that the questions of negligence on the part of the defendant and contributory negligence on that of the plaintiff were for the consideration of the jury.
    2. Same—Verdict supported by evidence is controlling.
    
      Held, that a verdict of the jury found upon sufficient evidence was con-rolling on these questions.
    3. Same—Freedom from contributory negligence must re established.
    BY PLAINTIFF.
    In such actions it is a general rule that the plaintiff must, as a part of his. case, establish either by direct or indirect, positive or circumstantial evidence, the freedom on his part from negligence contributing to the injuries-sustained.
    4. Same—Conflicting evidence—Must be submitted to jury.
    Where the evidence upon the question of negligence is conflicting it should be submitted to the jury. The court cannot rule upon it as a matter of law.
    5. Co-servants—Who are not.
    Parties employed on works of like nature and in the same locality are-not co-servants unless employed by a common principal.
    Appeal from á judgment entered upon a verdict of a. jury, in favor of the plaintiff, at the Oneida county circuit, and from an order denying a motion for a new trial, made upon the judge’s minutes.
    The plaintiff was injured on the 4th of September, 1883. He was a car repairer of the Rome, Waterton and Ogdensburg Railroad Company, and was, at the time he was injured, discharging his duties as such in their yard, about a quarter of a mile from the tracks of the New York Central and Hudson River Railroad Company. He “ was working upon a cattle car that was marked on both sides 'broken jaw.' It stood upon the south track; it is the south branch of the yard.” According to his testimony it was part of his duty in commencing that kind of work to nail up a red flag and that the red flag which he nailed up (as was his practice in commencing such work) "indicates that there is danger there and nothing is to meddle with it; that flag would stop a train and hold it upon a track for any man; I laid this flag right on the side sill, and drove a nail into the wood and bent it over it;'I nailed it on the front cattle car; there were two cattle cars together. ” He was working on the second car, and on the southwest end of it, while the flag was upon the northeast comer of the first car. He worked at it until noon with an employee of the same railroad. He testified that there was a car back of him; "the bumpers did not clear more than about six inches; I had my arm around the bumpers and I was putting my full weight on the last thread of the nut, so as to bring it home to its place with my right arm; as I did that it was struck by a car above; heard a collision and my arm was broken, a car being thrown in from the other end caused the collision, and caught me between the two bumper jaws and broke my arm off; the minute that ever the cars struck they loosened apart and then I stooped down and walked down towards the bank on the south side,” and, further, that he “was in no way employed by the Hew York Central and Hudson Eiver Eailroad Company, nor in any way subject to their orders; I was hired and paid by the Eome, Water-town and Ogdensburg Eailroad Company; that day the shifting engine of the Hew York Central was in the yard doing shifting; I don’t think she was there when I went to dinner, I think, she stood there when I came back, upon the track called the grain track.” There was evidence showing that the cars that came down on the Eome, Watertown and Ogdensburg Eailroad were not transferred until repaired. They were repaired by said railroad, the other railroads not accepting them until repaired by said railroad.
    
      C. _D. Prescott, for app’lt; McMahon & Curtin, for resp’t.
   Hardin, P. J.

In the course of his charge to the jury, judge said, as seems to me in this case upon the subject of negligence of the defendant, arises upon the proposition as to whether or not the employees of the defendant did something to the car that came down upon the car or cars at which the plaintiff was at work and produced the collision, and then, if they, by some act of theirs, caused this car to come down there and collide, then the question would be whether or mot such act was done without the exercise, on the part of the employees of the defendant, of reasonable care in the management of the engine or cars that they were managing. And by ‘ reasonable care,’ is meant such care as a person of ordinary prudence should exercise.” We are of the opinion that the evidence produced at the trial in regard to the acts and circumstances immediately antecedent and attending the injury of the plaintiff, called for a submission to the jury of the question of fact indicated in the language from the charge which we have just quoted. There was a conflict in the evidence It was for the jury to determine •whether there was negligent conduct on the part of the employees of the defendant on the occasion of the injury. The verdict of the jury finds the facts favorable to the plaintiff in that regard. We think the evidence was such that we ought to accept their verdict as controlling upon that question. Bills v. The N. Y. Central, 84 N. Y., 10; Canfield v. The Baltimore and Ohio, 93 N. Y., 537.

Second. Whether or not the plaintiff was guilty of contributory negligence was a question of fact for the jury. While we recall the general rule that it is a part of the plaintiff’s case to establish by direct or indirect, positive or circumstantial evidence, the freedom on his part from contributory negligence causing the injury sustained, we think, upon the evidence produced in this case, it was for the jury to determine whether he was guilty or free from contribu tory negligence. If the flag was up, it was the duty of the defendant’s servants to observe it and govern the movement of their shifting engine accordingly. Whether the plaintiff was in the exercise of ordinary care in resting his arm on the bumper while in the closing acts of his engagement, was a question for the consideration of the jury, and the evidence is such in respect to that circumstance that the question was one of fact for the jury. The court could not properly rule, as a matter of law, that the plaintiff was guilty of contributory negligence at the instant that the injury came to him. Having placed the flag in the position that he testifies as a warning, he had a reasonable reliance that no cars would be thrown against the one upon which he was engaged. It was for the jury, in view of all the facts relating to the position of the plaintiff at the time the injury was received, to say whether or not his position was unreasonable, careless, or such as in the exercise of ordinary care and prudence was proper

The trial judge was pressed to hold as a matter of law that it was the negligence of the co-employees of the plaintiff which produced the injury or contributed thereto. Reference was had to a rule of the company in whose service the plaintiff was, to the effect, viz.: “Station agents are held responsible for cars left at their stations, and must see that they have brakes set and properly secured against the possibility of being blown on the main track.” The principal object of this rule would seem from its language to prevent cars being set in motion by wind. No reasonable claim can be made upon the evidence that the injuries in question were produced by the action of the wind. On the contrary the verdict of the jury, under the charge submitted to them, necessarily finds that the injuries were produced by the servants of the defendant moving a car which impinged upon the one the plaintiff was at work upon. We think it was not unreasonable for the plaintiff to assume that the flag which he had nailed to the car would be seen by the servants of the defendant, and the warning given thereby would be observed. Newson v. The New York Central, 29 N. Y., 383; Ernst v. The H. R. R. R., 35 id., 9; McGrath v. The N. Y. C. R. R. 63 id., 522.

We are of the opinion that the servants of the defendant, at the time the injury was received in the operation of the defendant’s cars, although in and upon the track of the Borne, Watertown and Ogdensburg road, were not fellow servants or co-employees with the plaintiff; they were not servants of the same master. Wood’s Master and Servant, § 424, p. 807; Svenson v. The Atlantic Steamship Co., 57 N. Y., 108.

In that case it was said by Earl, J., viz.: “They were not the servants of a common principal in any sense, and they were not strictly engaged in the same employment. The duties of the one were confined to the steamship, and of the other to the lighter. Hence this case does not fall within the rule that an employer is not responsible for an injury occasioned to one employee by another engaged in the same general services or undertaking.” See also Smith v. New York and H. R. R., 19 N. Y., 132.

In that case Selden, J., says: “ The rule applies only where the action is brought for an injury to a servant or agent against the principal by whom such servant was himself employed.”

It is insisted by the learned counsel for the defendant “that unless the plaintiff’s injuries were the result of the acts of defendant’s servants, done and performed knowingly, and with a design or intent to injure the plaintiff, the plaintiff should not maintain this action. ” It appeared that the plaintiff was in the discharge of his duty rightfully upon the premises of the Borne and Watertown road at the time he received the injuries in question. It also appears that the defendant’s engine and servants had entered upon the Rome, Watertown and Ogdensburg track in pursuance of an arrangement or custom to gather cars from that road to be conducted over the road of the defendant. While upon the road of the Romé, Watertown and Ogdensburg road it was the duty of the defendant and its servants and agents to use ordinary care and caution to prevent injuries to the property or servants of the Rome, Watertown and Ogdens • burg road.

As was said by Andrews, J., in Sutton v. The New York Central Railroad Company (66 N. Y., 248) “the defend ant could not act so as to mislead them (persons upon the track of the defendant) and subject them without notice to perils from which they had a right to suppose they were ■exempt without responsibility in case of injury.” We think that case does not support the contention of the appellant. We think the case in hand falls within the principle laid down in Smith v. The New York and Harlem Railroad Company (19 N. Y., 127).

We are of the opinion that no error was committed at the trial, and that the verdict should stand.

The judgment and order should be affirmed, with costs.

Boardman and Follett, JJ., concur.  