
    Lorinda Wilson, Adm’rx of William Wilson, App’lt, v. The Hudson River Water Power & Paper Co., Resp’t.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed September 15, 1893.)
    
    Master and servant—Negligence.
    Plaintiff’s intestate was killed while in the employ of defendant engaged in fixing machinery in a vat. It appeared that while so employed the water was turned on by one Gr., and the machinery thus set in motion. No defect in the machinery itself was shown. Defendant had a superintendent who had charge of the business and men, and it did not appear that Gr. was invested with any general power or authority oyer the employes or the operation of the machinery. Held, that a dismissal of the complaint was proper; that the injury resulted from the negligence of GL, who was a co-employe with deceased, and not from any negligence of the defendant.
    Appeal from a judgment entered upon an order of a judge at a circuit dismissing plaintiff’s complaint.
    The action was for an 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 defendant.
    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 aj; 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 the 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.
    
      James A. Burnham (Edgar T. Brackett, of counsel), for app’lt; Edward W. Douglas, for resp’t.
   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 to the defendant, but was the result of negligence of a co-employe 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 co-employe, 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 co-employe 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 co-employe 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. D.& H. C. Co., 39 St. Rep., 153, 154.

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. R. R. Co., 18 N. Y., 432; Malone v. Hathaway, 64 id., 5 ; Vick v. R. R. Co., 95 id., 267 ; Mahoney v. N. Y. C. & H. R. R. R. Co., 46 St. Rep., 738-741; Webber v. Piper, 109 N. Y., 499 ; 16 St. Rep., 423.

’ 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. No 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.

Herrick, J., concurs._  