
    McDonald v. New York Cent. & H. R. R. Co.
    
      (Supreme Court, General Term, Fifth Department.
    
    March, 1892.)
    Master and Servant—Negligence oe Fellow Servants.
    In an action against a railroad company to recover for the death of plaintiff’s decedent, it appeared that decedent was a flagman in defendant’s employ, and was killed by defendant’s engine, running without a headlight; that the headlight, before the engine left the roundhouse, was inspected by defendant’s inspector, and found in good condition; that, when the engineer found it out of order, he was at a station where defendant had repair shops, with facilities for repairing it; and that it was the engineer’s duty to have it repaired before proceeding with the engine. Held, that the negligence of the engineer in failing to have the headlight repaired, and in running the engine without a headlight, was the negligence of decedent’s fellow servant, for which defendant was not liable.
    Appeal from circuit court, Monroe county.
    Action by Bridget McDonald, administratrix, against the New York Central & Hudson River Railroad Company, to recover damages for the death of Thomas McDonald. Decedent was a flagman in defendant’s employ, and was killed, while in the discharge of his duties, at a highway crossing, by being run over by defendant’s engine, running in the night without a headlight. Plaintiff had judgment, and from an order denying its motion fora new trial, made on the minutes, defendant appeals.
    Reversed.
    Argued before Dwigiit, 1\ J., and Macomber and Lewis, JJ.
    
      Albert If. Harris, for appellant. George F. Yeoman, for respondent.
   Lewis, J.

We assume in disposing of this appeal that McDonald’s death was caused by the running of the engine without a headlight, and that he was free from negligence contributory to his death. The question to be considered is whether the deceased came to his death by the negligence of the defendant, or by the negligence of a coemploye only. Mr. Brown, as one of defendant’s engineers, was required, on the afternoon of the day of the accident, to run an engine from the roundhouse in the city of Syracuse to the city of Buffalo. His fireman was Thomas Freeney. They left Syracuse at 2:30 that afternoon. When they arrived at Rochester, it was dark, and they there discovered that the headlight glass of the engine was out of order, and the light was not burning. The glass was unbroken. The bottom of it was in position, but the top was tilted back four inches, which let in the air and extinguished the headlight. The engineer could not repair it, so he caused to be placed on the front of the engine a signal light, about the size of an ordinary track lantern, and proceeded westwardly towards Buffalo without any headlight except the lantern; and, in passing over the crossing where McDonald was stationed, ran against him, causing his death. It was shown upon the trial that the defendant had in its employ at the roundhouse in Syracuse, where this engine was kept, a Mr. Wilke, whose business it was, and had been for many years, to inspect the headlights of the engines, and see that they were kept in repair. This engine was shown to have been in the roundhouse at Syracuse the day of the accident, until it was taken by the defendant’s engineer, as stated, The evidence tended to show that the headlight was inspected by the defendant’s inspector before it left Syracuse that day, and that it was in good condition. The defendant had shops at Syracuse and Rochester, with facilities for repairing the headlights of their engines. There was evidence tending to show that the defendant required its engineers, when using engines, to look after them, to see that they were in proper order for use, and, in case they were found to be out of order, to take the engines at once to the proper place for repairs, and report the defects. The rules of the company provided that a train running after sunset should display its headlight. The rules also provided that conductors and engine-men must take every precaution for the protection of their train, and in all cases of doubt or uncertainty to take the safe course, and run no risks. The trial justice charged the jury “that it appeared from all the evidence in the case that the engineer was charged with the duty of inspecting the engine, and seeing that it was in proper condition, and that it was for them to say whether the failure of the inspector, who, for the purposes of taking care of the engine, stood in the place of the company itself,—whether his failure, after he had discovered that there was a defect in the headlight, to bring it to ¡the notice of the people whose duty it was to mend it, and to see that the proper thing should be done with it, was negligence on the part of the company.” The defendant’s counsel duly excepted to this portion of the charge of the court, and asked the court to charge the jury that in leaving Rochester, ■and running to the crossing in question, with the headlight of the engine out • of order, the engineer acted as a fellow servant of McDonald, and not as the ■ defendant. The court declined so to charge, and the defendant excepted. The court did charge that there was no negligence in the inspection of the ¡headlight at Syracuse, and that there was no evidence of any defect in the headlight when it left Syracuse. So we have the question presented, was the . act of the engineer in proceeding with the defective headlight the negligence •of the defendant or the negligence of a coemploye of the deceased?

It is obviously the duty of every person engaged in the use of any kind of machinery to keep a constant supervision over it, to see that it does not get • out of order. The evidence shows that the repairing of this headlight could only be done at a shop furnished with proper facilities. It was the engineer’s ■ duty, when he found the headlight out of order, to run the engine into the ■ shop at Rochester for repairs. The engineer, the fireman, and the deceased, • so far as the ordinary duties they were required to perform, were unquestion-ably fellow servants. It is conceded that, when Brown was performing an -act necessary to the management and movement of his engine, he was a co- ■ employe of the deceased; but it is contended that when he was looking at the ■ engine, to see if it was in condition to be safely used, he was an inspector, ¡and stood in the place of the company. The acts of manipulating the engine levers and looking at the engine .may be performed simultaneously; and yet the respondent contends that, when doing one oí the acts, Brown stood as a representative of the company, and in doing the other he was acting as an engineer, simply. In keeping an oversight over the engine the engineer was, we think, simply performing a duty incumbent upon him as an engineer,— a duty incident to his position as an engineer; and, when he determined to proceed with the defective engine, it was the act of a coemploye of the deceased, and not the act of the principal. The engineer was not required to repair the headlight. Had he run the engine into the repair shop, and reported its condition to the company, he would have fully discharged his duty. If an employer who carefully examines a machine, and, finding it in good condition, directs his servants to use it, enjoining upon one of them the duty of watchfulness, to see that it does not get out of repair, is to be held liable for an injury to one of the servants, caused by the failure of the one required to keep watch to perform his duty in that regard, the doctrine that employers are not to be held liable for the negligent acts of coemployes would be practically exploded. “A rule of a railroad company providing that conductors will be held responsible for the proper adjustment of switches used by their trains does not make the conductor the representative of the company, so as to make his negligence that of the company, in respect to injuries sustained by other employes.” Miller v. Railroad Co., (Or.) 26 Pac. Rep. 70; Reynolds v. Kneeland, (Sup.) 17 N. Y. Supp. 895.

We have examined the authorities referred to by the learned trial justice and the counsel for the respondent, but they fail, in our judgment, to sustain the verdict in this case. Fuller v. Jewett, 80 N. Y. 46, was a case of an injury to an engineer, caused by the explosion of a locomotive boiler. The explosion was caused by the weakness of the boiler, resulting from defective stay bolts and a defective outer sheeting. The engine, after it had been in use for 10 years, was taken to the shop of the company for general repairs; and the master mechanic, in charge of the shop, gave directions for its thorough overhauling. The repairs were made by mechanics in the employ of the company. The company was held liable for the negligence of these mechanics in repairing the boiler, upon the ground that it had delegated to them the entire charge of making the repairs, and in doing so they stood in the place of the principal. The case of Crispin v. Rabbitt, 81 N. Y. 516, fails to sustain the contention of the respondent.

The defendant having in its employ at Syracuse an expert, to whom it had confided the duty of examining and repairing its locomotive headlights, and he having fully discharged his duty in the premises, the defendant was not liable to the plaintiff for the negligence of the engineer. The supervision of the engine required of the engineer Brown pertained to his duty as an operative, simply, and in performing it he was acting- as a coemploye of the deceased. We find ourselves unable to agree with the learned trial court’s views of the liability of the defendant, upon the evidence. The order appealed from should be reversed, and a new trial granted; costs to abide the event. All concur.  