
    George Dalzell, Respondent, v. Westinghouse Electric and Manufacturing Company, Appellant.
    Second Department,
    December 81, 1913.
    Master and servant—negligence—injury to emp.oyee adjusting overhead wires of electric company—safe place to work—failure of fellow-servant to test coupling.
    A live motor used to switch a dead motor to another track in a railway yard pushed it down a grade beyond a switch and__then was stopped to reverse its direction, but the coupling, which the motorman had failed to test to see if it had securely engaged, parted, and the dead motor continued and collided with a tower car on which the plaintiff was adjusting overhead wires, thereby injuring him. Plaintiff, the coupler and switchman were defendant’s servants, but the motorman on the live motor was in the general service of the railway company.
    
      Held, that plaintiff had been furnished with a safe place te work, which became unsafe because the dead motor collided with it, due to the neglect of plaintiff’s fellow-servant to test the coupling, and, therefore, the complaint should be dismissed.
    Appeal by the defendant, Westinghouse Electric and Manufacturing Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 21st day of May, 1912, upon the 'verdict of a jury for $3,000, and also from an order entered in said clerk’s office on the 5th day of June, 1912, denying defendant’s motion for a new trial made upon the minutes.
    
      
      E. Clyde Sherwood [Robert B. Cumming and Amos H. Stephens with him on the brief], for the appellant.
    
      Michael J. Tierney, for the respondent.
   Thomas, J.:

It was necessary to switch to another track a dead motor in a railway yard. For this a live motor pushed it down a grade beyond the switch and then stopped to reverse its direction; but the coupling, which had not securely engaged, parted, and the dead motor continued into collision with a tower car on which plaintiff was raised to adjust overhead wires, whereby he was hurt. The plaintiff was defendant’s servant, as was O’Brien, the coupler and switchman. Day was the superintendent of the motors to be inspected, and, if insufficient, to be made ready for use, but did not have jurisdiction of the plaintiff and his work. McGuire was the motorman or hostler on the live motor and was in the general service of the railway company. He and the motor were at Day’s disposition for switching purposes or the movement of motors. When the live motor apparently made the coupling with the dead motor, McGuire did not draw on the coupling to discover whether it had actually engaged, but pushed, so that the fact of coupling was not tested. Automatic couplings sometimes fail to make securely and negligence could be predicated upon the failure to make the test, but if the negligence is that of a coservant as to a detail the master is not liable.

The question submitted was whether the defendant furnished plaintiff a safe place to work. It was safe in itself. Its safe continuance" was in part dependent upon a safe use of the track on which it was. It became unsafe because the dead motor collided with it. That happened because the coupling had not been securely made, and the fault of that was with the one who should have tested it to determine whether it had been made. That fault rested with McGuire, the engineer, O’Brien, the switchman, or Day, their superintendent. The last two were coservants of the plaintiff and the failure related only to a detail of the work, to wit, testing the coupling, for which the master is not liable. If McGuire was at fault the master is not liable for the omission of the detail, if he was plaintiff’s fellow-servant. If he was not defendant’s servant his fault is imputable to the railroad company.

It was urged that there was a negligent failure to have safety chains. That was not submitted to the jury as an independent question and, as to this defendant, should not have been. The defendant did not furnish the motor or motorman, and in that respect at least the railroad company participated in the undertaking and constrained the defendant to accept the equipment tendered. But had the coupling been properly made the accident would not have happened, and safety chains were not required on switching engines as precaution against negligence in making the coupling.

The judgment and order should be reversed and the'complaint dismissed, with costs.

Jenics, P. J., Carr, Rich and Putnam, JJ., concurred.

Judgment and order reversed and complaint dismissed, with costs.  