
    Martin Cavanagh, Respondent, v. Central New England Railway Company, Appellant.
    Second Department,
    April 23, 1909.
    Stailroad — negligence—injury to employee alighting from box car— facts not justifying recovery — acts by superintendent outside his duties.
    Where the employee of a railroad, having finished his day’s work, voluntarily entered a box car standing upon the track while waiting for a train to take him home, instead of making use of the railroad station less than 100 feet away, and, being warned that his train was approaching, backed out of the side door of the car, and while descending a ladder to the ground was struck by the approaching train, he cannot recover for the injuries received.
    Although the plaintiff entered the car with his foreman, and was invited to alight by him as the train approached, the foreman was not engaged in the performance of any duty owed to the railroad, for the day’s work had been completed, and the two were merely waiting for the train to take them home.
    Chapter 657 of the Laws of 1906, providing that persons in the service of a railroad intrusted with superintendence are not fellow-servants, applies only where they are acting in the performance of duties to the railroad.
    Appeal by the defendant, the Central Hew England Railway Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Dutchess on the 22d day of July, 1908, upon the verdict of a jury for $500, and also from an order entered in said clerk’s office on the 22d day of August, 1908, denying the defendant’s motion for a new trial made upon the minutes.
    
      Charles M. Sheafe, Jr. [William Greenough with him on the brief], for the appellant.
    
      Charles Morschauser, for the respondent.
   Woodward, J.:

The plaintiff in this action was a mason’s helper, employed by the defendant in building culverts along its railroad line. He lived at Rliinecliff, some eighteen miles from the point where he was at work on the 6th day of May, 1907. For a period of ten days .he had been coming to his work on one of the defendant’s trains, returning in the evening upon the same train running in the opposite direction. On the day of the accident the plaintiff quit work about three o’clock in the afternoon, and, with a small number of fellow-employees, took a handcar for Elizaville, at which point he intended taking the train for Rhinecliff. It was raining, and one Kearns, who is referred to as plaintiff’s boss, and who appears to have been the foreman in charge of the culvert builders, suggested or directed that the plaintiff go into a house car standing near the station to await the coming of the train. It does not appear why the plaintiff was sent to the box car rather than to the station only fifty-six feet away, or why he was not sent to the toolliouse directly opposite the station ; nor does it appear that Kearns had any possible authority over the plaintiff at this time, the work of the day being over. But the plaintiff entered this house car, which appears to have been used by two of the defendant’s employees, in company with Kearns. When the train was within a half a mile of the station the engineer says he blew the whistle, and it is not disputed that Kearns announced to the plaintiff that the train was coming, and left the car by the side door opening directly upon the track on which the train was approaching, and that the engineer blew several short blasts upon the whistle when he discovered Kearns getting into a dangerous position. Kearns got down and out of the way, and the plaintiff, knowing the location of this car with reference to the track, knowing that the train was coming, backed out of the side door and down a ladder which the occupants of the car had borrowed for their own convenience, and while he was descending this short ladder, or just as he had reached the ground, he was struck by the engine, at that time coming to a standstill at the station only fifty-six feet away, receiving the injuries for which he has recovered a verdict for $500. A number of acts or omissions were suggested on the part of the defendant, but the question finally submitted to the jury was “ did this defendant, knowing or having reason to know that this house-ear was used on the side track, and that a ladder was used from it to the ground within two and a half feet of the main rail, ánd used morning and night by the men who lived in the house-car — did they use due, ordinary and common care in operating a train so close to the ladder, knowing the use the ladder was put to ? ” While the plaintiff testified that he did not hear the train coming, the testimony of the engineer, corroborated by others, is uncontradicted that the whistle was blown a quarter of a mile before reaching the station; that the bell was rung continuously as the train approached the station, and that several blasts were blown as a warning to Kearns who immediately preceded the plaintiff down the ladder. What more the defendant was called upon to do does not suggest itself to our mind. This house car was not placed where it was for the use of employees generally ; it was there for the purposes of the two employees who actually occupied it. There were three other doors to the car, entirely out of danger, and while it is claimed that these doors were fastened, there is no evidence that they were fastened by the defendant, or that it had any reason to suppose that the door next to the main track would be made use of, even by those who were occupying the car, much less by an employee who was merely in the car for his own purposes. The defendant had provided a depot for the accommodation of passengers; the plaintiff was awaiting the coming of a train, and just why the defendant should have taken any extraordinary precautions to protect him does not appear. But aside from the question of the defendant’s negligence, the case is barren of any evidence from which the inference can be properly drawn that the plaintiff exercised any reasonable degree of care. He was awaiting the coming of this very train; Kearns was with him in the car and had announced the coming of the train, and had, himself, preceded the plaintiff down this ladder, and had been warned by the blowing of the whistle. Assuming that the plaintiff did not hear the train, he had been told that it was coming; assuming that he did not hear the whistle blown for Kearns, he was aware that the train was coming, and yet'he testifies that he backed down this ladder, without, so far as appears, taking the slightest precaution to learn for himself whether the train was near or not. The suggestion that the plaintiff was invited to alight from this car by Kearns at a time when it was unsafe for him to do so, and that this invitation on the part of Kearns involved the defendant in liability is absurd; the time has not yet come when it is the duty of employers to provide nurses or guardians for employees. At the time in question Kearns, if he had invited the plaintiff, was not in a position to command him in any possible sense; neither Kearns nor the plaintiff was engaged in the performance of any duty which they owed to the defendant; they were merely waiting for a train to take them home after the day’s work was completed, and the most that chapter 657 of the Laws of 1906 (adding to Bailroad Law [Laws of 1890, chap. 565], § 42a) attempts to do is to provide that “it shall be held in such actions that persons engaged in the service of any railroad corporation, foreign or domestic, doing business in this State, * * * wIio are entrusted by such corporation * * * with the authority of superintendence, control or command of other persons in the employment of such corporation, * * * or with the authority to direct or control any other employee in the performance of the duty of such employee, * * * are not fellow-servants of such injured or deceased employee.” It is only where the negligence complained of is due to the superintendent in directing the performance of duties that the rule is changed, and not where the parties are in a position to act independently. Here the plaintiff was not discharging any possible duty to the defendant; he was as free to stay in the car or to depart from it as any other third person would have been, and he certainly owed the same obligation to look out for the obvious dangers of his situation that Kearns did. The latter, if he had been killed, could not have held the defendant liable; how is the plaintiff in any better position?

The judgment and order appealed from should be reversed.

Jenks, Gaynoe, Bure and Bioh, JJ., concurred.

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