
    (71 Hun, 292.)
    WILSON v. HUDSON RIVER WATER-POWER & PAPER CO.
    (Supreme Court, General Term, Third Department.
    September 15, 1893.)
    Injuries to Employe—Fellow Servant or Vice Principat .
    A chemist employed in a paper mill, who has no control over the machinery or employes, is a fellow servant of a laborer employed in the construction of an addition to the mill; and, where the latter is injured by the starting of the machinery through the chemist’s negligence, the-master is not liable.
    Appeal from circuit court, Saratoga county.
    Action by Lorinda Wilson, administratrix of William Wilson, against the Hudson Biver Water-Power & Paper Company, to recover damages for killing plaintiff’s intestate. From a judgment entered on an order dismissing the complaint, plaintiff appeals.
    Affirmed.
    The action was for alleged injury’on the part of the defendant in not furnishing a reasonably safe place and safe machinery in the defendant’s factory, where plaintiff’s intestate was employed as a laborer by the defend-mt. At the time of the injury complained of, the defendant had in process of construction an addition to its mill, and the intestate was engaged in working at the fixtures or machinery in the mill so in process of construction, and, while so engaged, was caught in a chest or vat being constructed for mixing pulp by revolving shafts and arms, and was killed, and this action is prosecuted by his administratrix to recover damages resulting from killing. At the conclusion of the case, the defendant moved to nonsuit the plaintiff, which motion was granted, and from the judgment entered upon that decision the plaintiff appealed.
    Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.
    James A. Burnham, (Edgar T. Brackett, of counsel,) for appellant.
    Edward W. Douglas, for respondent.
   MAYHAM, P. J.

The plaintiff was nonsuited by the learned judge at the trial, upon the ground that the negligence complained of was not negligence fairly imputable tó the defendant, but was the result of negligence of a coemploye of the intestate-in turning the water on the wheel, and thus setting the machinery in motion, at a time when the intestate was engaged in a position where no harm could have come to him but from the starting of the machinery, and that the intestate was not proven to be free from ■ contributory negligence.

The determination of the first question upon which the learned judge placed his decision must turn upon the question as to whether Griffin, the man who opened the gate, and thus precipitated the water upon the wheel, setting the machinery in motion, was the alter ego of the defendant. If he was, then his act was the act of the defendant, and it would be charged with negligence. If he was not, then his act would be that of a coemploye, for which the defendant would not be liable. The evidence shows that Griffin was the chemist in the employ of the defendant, in its manufacturing business, and there is no direct evidence that he had any. authority or control over the machinery, or those whose duty it was to operate it. The defendant had in its employ a superintendent, who seemed to have general charge of its business, and of the men in its employ, and -the employes appear by the evidence to have had assigned to them their respective duties, and it nowhere appears that the company had invested Griffin with any general power or authority, either over the employes or the operation of the machinery in its mills. Under these circumstances, the evidence discloses that Griffin, who, it must be assumed, was a coemploye with the deceased, carelessly or negligently, and without appearing to have any express authority or direction from the superintendent, set the machinery in motion by turning the water upon the wheel, and thereby caused the death of the plaintiff’s intestate. He was, within the facts of this case, a coemploye and fellow servant with the intestate. Against his negligent acts the intestate took the risk. The rule seems settled that all who serve the same master, work under the same control, derive their authority and compensation from the same common source, and are engaged in the same general business, though it may be in different grades or departments of it, are fellow servants, who take the risk of each other’s negligence. Mele v. Canal Co., (Super. N. Y.) 14 N. Y. Supp. 630. In this case the court held that “prima facie the servants of a common master employed in the railway service are fellow servants, and neither has a cause of action for the negligence of the other.” Boldt v. Railroad Co., 18 N. Y. 432; Malone v. Hathaway, 64 N. Y. 5; Vick v. Railroad Co., 95 N. Y. 267; Mahoney v. Railroad Co., (Sup.) 19 N. Y. Supp. 511; Webber v. Piper, 109 N. Y. 499, 17 N. E. Rep. 216. The machinery in the mill upon which plaintiff’s intestate was engaged to work was incomplete, and he was at the time of the accident engaged in completing it. Ho inherent defect existed in the machinery itself, and no harm could have come to him but for the improper setting of the machinery in motion, while he was exposed. It is not therefore a case of unsafe and improper machinery furnished by the employer to the employe by which the employe is injured, but rather a case of the improper use by a fellow servant of machinery suitable and proper for the purpose for which it was intended, and it was by the improper use of the machinery itself that the injury ■ resulted to the deceased. We are therefore of the opinion that the decision of the learned judge was correct, and that the injury resulted, not from any negligence on the part of the defendant, but from the negligence or improper conduct of a fellow servant.

The judgment should be affirmed, with costs.  