
    Chauncey House, Respondent, v. The Lehigh Valley Railroad Company, Appellant.
    Third Department,
    November 11, 1908.
    Railroad — negligence — failure of operator to give warning of approaching train — fellow-servant.
    A telegraph operator to whom the. foreman of a gang of trackmen applied for ' information as to trains running on irregular schedules was a fellow-servant of the trackmen, and there can be no recovery for injuries received by reason, of his negligence in failing to report the approach of a delayed train.
    As such telegraph operator was the fellow-servant of the trackmen, so too their foreman in giving them information received from him acted as a fellow-servant.
    Kellogg, J., dissented.
    Appeal by the defendant, The Lehigh Valley Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff; entered in the office of the qlerk of the county of Chemung on the 16th day of March, 1908, upon the verdict of a jury for $8,000, and also from an order entered in said clerk’s office on the 16th day of March, 1908, denying the defendant’s motion for a neW trial made upon the 'minutes.
    
      Diven & Dwen [Eugene Diven of counsel], for the appellant.
    
      Sherman Moreland [Richard H. Thurston of counsel], for the respondent.
   Smith, P. J.:

This judgment has charged the defendant with a • breach of its duty, in failing to provide the plaintiff with a safe place to. work.

The plaintiff was one of four section men under a section foreman. Upon the morning of the 30th day of January, 1903, while at work upon a bridge upon the defendant’s line he was struck by one of the defendant’s trains and severely injured. He was at work upon this bridge in due course of his employment, and this train-was one that had been delayed about eleven hours, by reason of having jumped the track at a point westerly of this bridge. A rule of the company required the track foreman to ascertain at the nearest telegraph office what extra or special trains were scheduled. Of the regular trains they had due notice. Upon the morning in question the foreman had applied to the telegraph operator at Swartwood, who had communicated with the train dispatcher. The evidence of the foreman is to the effect that the telegraph operator after having communicated with the train dispatcher, told him that there was nothing extra scheduled for that day. The evidence of the operator is t~ the effect that he told the foreman that train 326 was in the ditch, and that the engineer had his leg broken. The train 326 was the train by which the plaintiff was afterwards struck. Here was a question of veracity between the foreman and the operator, and the question was submitted to the jury as to whether the operator negligently failed to inform the foreman of the fact that this train had been ditched and thereby delayed, the court charging the jury that the negligence of the operator, if such were'^ found, was the negligence of the defendant, for which a recovery could be. had. To this charge an exception was duly taken.

I am unable to distinguish this case from the case of Slater v. Jewett (85 N. Y. 61). In that case a telegraph operator had failed to give notice to an engineer of a train, to whom he was required by the rules of the company to give notice as to the running of the train. By reason of that negligence a collision occurred, in which an employee upon the train was killed. It was' held that the negligence of the .operator was the negligence of a fellow-servant, and that the defendant was not liable therefor. While that case has been at times distinguished, it has never been overruled, and is, I think, a controlling authority in the case at bar. '

The respondent contends that if this be error, it is harmless, because of the admission in the appellant’s brief that the foreman’s negligence caused the injury. It is claimed that the foreman is the vice-principal, for the purpose of providing a safe place to work for the section men, and of warning them of known dangers. The answer to this contention would seem to be,- that if the act of the telegraph operator in failing .to give information to the foreman be the act of a fellow-servant, it must be that the act of the foreman in failing to give the information, of the danger to the section hand is also the act of a fellow-servant. In other words, every reason for holding that the giving of the information by the operator to the foreman is a matter of “executive detail' exists for holding that the giving of the information by the foreman to the section hand is a matter of “executive detail.” It follows that the judgment and order must be-reversed, and a new trial granted, with, costs to appellant to abide the event.

All concurred, except Kellogg, J., dissenting in opinion; Sewell, J., not sitting.

Kellogg, J. (dissenting):

The train dispatcher, who was performing a master’s duty, negligently informed the operator that the train which-had not passed was in the ditch and the engineer had a leg broken. The train was derailed the night before. In fact, at the time this message was sent the train, or a part of it, was upon the track already in progress toward the scene of the accident, or was .upon the track about to start. . The train dispatcher knew or should have known this situation. His answer to the question induced the plaintiff to put himself upon the bridge where he could riot escape. Upon the conceded facts, I think there was a violation of the master’s duty. Whether the telegraph operator communicated the information that the train was in the ditch and the engineer with a broken leg, or that no train was coming, is quite immaterial, because the answer from the train dispatcher was only important as indicating that the track was clear. The question to the train dispatcher and his answer to it must be read together. Whichever way the communication came from the telegraph operator, I think it was in substance the information sent from the train dispatcher, and that the master is responsible for the information which caused the plaintiff to put himself in a place of danger. The criticism is, made that the charge to the jury did not indicate that negligence might be predicated upon the fact that the train dispatcher sent a negligent' message which caused the injury, but all presumptions are in favor of the verdict, and, if the jury have decided the case right, it ought not to be reversed because the judge did not submit it to them as fully as he should have done. It is a technicality .purely to say that the verdict is based upon the negligence of the telegraph operator and not upon the negligence of the train dispatcher, when in fact the telegraph operator in substance communicated the information which the train dispatcher gave him. In Ostrander v. State of New York (192 N. Y. 415), decided by the Court of Appeals September, 1908, it was held that where findings of fact omit a material fact, if the evidence shows the existence of the fact, the court may imply a finding upon which the judgment may stand. The same doctrine should apply more liberally to the verdict of a jury, and a correct verdict in a case free from all valid exceptions ought not to be reversed because of the failure in the charge to point out every ground upon which the defendant’s negligence may be predicated. I think the evidence fully sustains the recovery.

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