
    (101 App. Div. 134)
    McLAUGHLIN v. INTERURBAN ST. RY. CO.
    (Supreme Court, Appellate Division, Second Department.
    January 27, 1905.)
    1. Master and Servant—Injuries to Servant—Fellow Servants.
    Plaintiff, a street car conductor in defendant’s employ, boarded a car during a temporary suspension of duty by reason of illness, and was directed by the conductor to ride on the front platform. While so riding without payment of fare, plaintiff was thrown from the car and injured by the negligence of the driver in suddenly loosening the brake. Held, that plaintiff was a fellow servant of the driver, and not entitled to recover.
    2. Same—Employers’ Liability Act.
    The conductor of the car on which plaintiff, a conductor off duty, was injured, was not a person whose sole or principal duty was that of superintendence, within Employers’ Liability Act (Laws 1902, p. 1749, c. 600) § 2, providing that the employer shall be liable for injuries to a servant resulting from the negligence of a eo-employé exercising superintendence, etc., so as to entitle plaintiff to recover* on the ground that such conductor was guilty of negligence in commanding plaintiff to occupy a dangerous position, on the front platform of the car.
    
      3. Same—Identity oe Employee.
    .Where a notice of injury served by plaintiff was addressed to defendant, and alleged that on the date of plaintiff’s injury he was in defendant’s employ as a street car conductor, he could not claim on the • trial that the evidence showed that he was employed by a certain- railway company other than defendant, and that there was no evidence that such company and defendant were identical.
    Appeal from Trial Term, Queens County.
    Action by Joseph McLaughlin against the Interurban Street Railway Company. From a judgment in favor of defendant, dismissing the complaint, at the close of plaintiff’s case, plaintiff appeals.
    Affirmed.
    Argued before HIRSCHBERG, P. J., and WOODWARD, JENKS, and HOOKER, JJ.
    John C. Robinson, for appellant.
    Bayard H. Ames, for respondent.
   HIRSCHBERG, P. J.

The plaintiff was seriously injured on December 17, 1902, while riding on one of the defendant’s horse cars on Avenue A, in the vicinity of Second street, in the borough of Manhattan. He was a conductor in the defendant’s employ, but had been laid off a few days before because of illneás, but had received on the day of the accident a physician’s certificate, required by the defendant’s rules, attesting that he would be able to resume his duties on December' 18th. He boarded one of the defendant’s cars on the day of the accident, and was allowed to ride free because he was wearing the uniform of a conductor, and was regarded as being in the defendant’s employment. The conductor of the car required him to ride on the front platform, and while he was there the driver suddenly loosened the brake, and the resulting movement of the car threw him off and inflicted the very serious injury of which he complains. The complaint is framed under the act commonly known as the “Employers’ Liability Act” (chapter 600, p. 1748, of the Laws of 1902), and proof was given of the service of the notice required by section 2 of that statute.

Conceding that the plaintiff was free from negligence which contributed to his accident, and that the act of the driver in suddenly releasing the brake constituted negligence, I am of opinion that the plaintiff cannot maintain this action, because the negligence was that of a co-employé. The plaintiff must be regarded as in-the defendant’s service, under the circumstances of the case, notwithstanding the fact that he was temporarily relieved from active duty by reason of his sickness. He understood that he was traveling free because of his uniform and because of his employment. ' He testified:

“On the strength of my uniform and the badge I had on, I had not paid any fare when I went into the car. I intended to take a seat when— I had not paid any fare at this time. I got on at Eourteenth street, and stood on the front platform, and paid no fare. The reason I did that was because I had my badge on, and uniform.”

That an employé of a common carrier, riding free because of his employment, cannot recover for injuries sustained by reason of the negligence of a fellow servant, is settled law in this state. Ross v. N. Y. Cent. & Hudson R. R. Co., 5 Hun, 488, affirmed 74 N. Y. 617; Vick v. N. Y. C. & H. R. R. Co., 95 N. Y. 267, 47 Am. Rep. 36.

The provisions oí the employers’ liability act, supra, extend the liability of the employer to a case in which the injury results from the negligence of a co-employé only where the negligent person is “in the service of the employer entrusted with and exercising superintendence whose sole or principal duty is that of superintendence, or in the absence of such superintendent, of any person acting as superintendent with the authority or consent of sufch employer.” The learned counsel for the appellant insists that the duties of a conductor embrace superintendence, and that it was negligence on the part of the conductor having charge of the car to compel the plaintiff to occupy a dangerous position upon the front platform. It is true that, in a general sense, the duties both of a car conductor and of a car driver require the exercise of superintendence to the extent that intelligent watchfulness is essential to the careful performance of their work; but the superintendence referred to in the statute is something more than this, and is intended to relate to that class of servants who are generally known as “superintendents,” and whose sole or principal duty is to oversee the work of others.

The technical point is made on the appellant’s behalf that his testimony was to the effect that in December, 1903, he was employed by the Metropolitan Street Railway Company, and that there is no evidence that that company and the defendant are identical. This point is. destroyed by the notice of the accident, hereinbefore referred to, signed and served by the plaintiff, which is addressed to the defendant, the Interurban Street Railway Company, in which the plaintiff states (referring to the date of the accident) “that at that time I was on your employment list of conductors.”

The judgment should be affirmed.

Judgment affirmed, with costs. All concur.  