
    Thomas Conlon, Resp’t, v. The New York Central and Hudson River Railroad Co., App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed December, 1893.)
    
    1. Negligence—Fellow sebvant.
    Where the agent of a firm directs the brakeman in charge of the company’s train to uncouple the cars and offers to place them himself where he wants them, he is not a fellow servant of the brakeman, but is acting for his employers.
    2. Same—Cabe.
    While he is so acting the company is bound to exercise proper care in the management of its cars so as not to injure him.
    3. Same—Contributory.
    Where the facts are all before the jury, it is only in unusual cases that the question of contributory negligence can be taken from them.
    4. Same—Charge.
    In such case, a request on the part of the company to charge that, if the plaintiff could have put himself in a position where, by looking, he could have seen the cars coming and did not look, it was negligence on his part, is properly refused.
    5. Same—Bell or whistle. ■
    It is proper, in such case, to show that the bell "was not rung or the whistle blown or any other signal given.
    6. Same.
    Where the brakeman is in apparent charge of the train, if he uncouples the cars, moves the train back to the switch and backs it up so as to injure the plaintiff, he represents the company, and it is liable for his negligence.
    
      Appeal from a judgment in favor of plaintiff.
    
      Ashbel Green (F. L. Westbrook, of counsel), for app’lt; G. D. B. Hasbrouck, for resp’t. ■
   Putnam, J.

It is claimed by appellant that plaintiff, having directed the brakeman in charge of defendant’s train to uncouple the cars and offered to place them himself where he, plaintiff, wanted them, should be deemed a fellow servant of the brakeman and as assuming the risks incident to the business, including that of the negligence of his fellow servant or brakeman. Plaintiff’s volunteering to do the work of the employe of defendant should not impose on it a greater liability than that for which it was liable to its own servant, and. hence it was not liable for the negligence of the brakeman, if any.

We think this position is not well taken. Plaintiff at the time he was injured was a servant in the employ of Everett & Tread-well. Defendant switched two cars down to the scales. After two or three attempts it failed to place the cars on the scales, and plaintiff then, as the agent of Everett & Treadwell, received the cars from defendant on the track near the scales, and offered to place them there himself. In the transaction he acted merely for Everett & Treadwell, voluntarily receiving the cars for that firm near the scales instead of on them. Acting for Everett & Tread-well he relieved the company from doing what he might have required them to do. In spotting two cars he was not acting for defendant, but for his employers. Hence he did not occupy the same position as a fellow servant. Had he not been in the employ of Everett & Treadwell, and voluntarily offered to aid the servants of the defendant in discharging their duties, the case might have been otherwise. Then, perhaps, he would have occupied the position of a servant of defendant doing the work without compensation. Such was the case of Degg v. Midland R. W. Co., 40 Eng. L. & E., 376, and other cases cited by the learned - •counsel for appellant on this point.

We think the evidence in the case was such as to present a question of fact as to whether or not the injury to plaintiff was caused by defendant’s negligence, which was properly submitted to the jury by the learned trial judge. The plaintiff was rightfully where he was injured as an employe of Everett & Tread-well. He testifies : “ It was my business to place that car where I wanted it; it was my business to unload these cars, and to pinch the cars to accommodate myself to the elevator; I had to get it directly in front of this elevator. Q. Then your occupation required your presence on the rails ? A. Yes, sir.” The switch, through which the cars were run to the place of the accident, was placed for his employers in order to transport cars opposite their place of business. The cars were left near the scales by defendant’s servants in charge of plaintiff at the place selected by defendant for unloading them. Plaintiff was not at this place merely by license of defendant, as in the case of Nicholson v. E. R. R. Co., 41 N. Y., 523, but was rightfully there and doing a lawful act. If he had been there, however, merely by license of defendant, it was liable if it injured him by a careless or heedless act. Nicholson v. The Erie R. R. Co., supra, 532, 533.

Hence, the jury were justified, from the evidence in finding that the plaintiff received the two cars from defendant’s servant— the brakeman who appeared to have charge of the train—and was lawfully engaged in moving the same, having told the brakeman he would do so; and while plaintiff was so engaged, and a very brief period after he commenced the moving, defendant backed its cars down upon him without any signal or warning of any kind. We think the case, therefore, as to defendant’s negligence, was one properly submitted to the jury. The defendant was bound to exercise proper care in the management of its cars so as not to injure the plaintiff. Young v. N. Y. C. & H. R. R. R. Co., 13 Daly, 294; 103 N. Y., 678.

The question as to plaintiff’s contributory negligence was also properly left to the jury. All the circumstances relating to the accident were proved and raised a question of fact. We cannot determine as a legal conclusion that plaintiff, under the circumstances, was bound to watch for trains backing up against the cars where he was at work, or that it was negligence not to anticipate the approach of the train which injured him, he having notified defendant’s servant of his intention to spot the two cars. See Newson v. N. Y. C. R. R. Co., 29 N. Y., 383 ; Feeney v. L. I. R. R. Co., 116 id., 375-379 ; 26 St. Rep., 729.

Where the facts are all before the jury it is only in unusual cases that the question of contributory negligence can be taken from them. Massoth v. D. & H. C. Co., 64 N. Y., 529. There was testimony in the case from which the jury might have concluded that the plaintiff did not exercise proper care at the time of the accident; but such evidence was not so conclusive as to justify the trial court in passing on the question as one of law.

We think the court below properly instructed the jury on the question of contributory negligence. The request of the defendant to the court to charge the jury “ that if the plaintiff could have put himself in such a position where by looking he could have seen these cars coming and he did not put himself in such a position and did not look, that it was negligence upon his part,” was properly refused. If the court had been asked to instruct the jury that if plaintiff, where he was at work, by looking could have seen the cars coming and did not look, or while doing the work could so have placed himself as to have seen the cars approaching and did not do so, it possibly might have been the duty of the court so to charge. . The cases cited by appellant upon this point are those where accidents occurred to travelers crossing railroad tracks, and hence are not applicable to this case.

We think the trial judge correctly instructed the jury when requested to charge that the defendant was not required to ring a bell, and not ringing a bell was not negligence on its part. The judge remarked: “I leave it to the jury to say whether under the circumstances as proven here, the brakeman did his duty .in permitting his train to come in without giving the plaintiff any notice either by ringing the bell, blowing a whistle, or any.other signal which might have attracted his attention. I do not charge that it was their duty to ring a bell or blow a whistle. * * * * It is for the jury to say whether proper notice was given, and if they find notice ought to have been given him under the circumstances they may take into consideration the fact that the bell was not rung or other signal given.” It was a question of fact whether the defendant was negligent It was proper to show all the facts; that the bell was not rung or the whistle blown or any other signal given. These facts bear on the question of defendant’s negligence.

We also think the court did not err in that portion of his charge wherein he referred to the brakeman. Among other things he said: “ If you find that he did fail in the discharge of his duty to the plaintiff, and he represented the defendant so far as the defendant is concerned in this action, his negligence is negligence upon the part of the defendant.

The testimony in the case was such that the jury were authorized to find that the brakeman at the time in question was in fact acting as the conductor of the train that injured the plaintiff — at least that he was in charge of the train. Under defendant’s rules as sworn to by Watson he could have charge of such a train. Watson says: “The conductor instructs the brakeman that they are going to put a car on a certain siding, and the brakeman or the conductor gives the engineer a certain signal to move ahead or move backward as the case may be, and in answer to that signal the engineer moves his engine and switches the car. In answer to either the signal from the brakeman or the conductor, the brakeman when a train is operated may be either on the top of the car'or he, may be on the ground.” That the brakeman was in the apparent charge of the train was shown by the evidence. Therefore, the remarks of the trial judge to which the appellant takes exception were justified. If the brakeman uncoupled the cars and moved the train back to the switch and backed it up so as to injure the plaintiff he represented the defendant and it is liable for his negligence.

We conclude that no error was committed upon the trial and that the judgment should be affirmed, with costs.

All concur.  