
    Anna V. Hintze, as Administratrix, etc., of Otto W. Hintze, Deceased, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
    Second Department,
    November 18, 1910.
    Railroad — negligence — death of patrolman by reason of failure of other patrolman to give warning of approaching train — section 42a of Railroad Law construed.
    Section 43a of the Railroad Law, making persons who are given physical control or direction of the movements of a signal vice-principals of the railroad company rather than fellow-servants of other employees, only applies to employees whose special or sole function is to give warning, not to those upon whom such duty devolves as an incident to their work.
    Hence, where third-rail patrolmen work in pairs and alternately watch for approaching trains while the other inspects the third rail for defects, they are fellow-servants, and the railroad is not liable for the death of one patrolman caused by the failure of the other to give warning of an approaching train.
    Appeal by the defendant, The New York Central and Hudson Eiver Eailroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the, office of the clerk of the county of Orange on the 9th day of March, 1910, upon the verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the same day denying the defendant’s motion for a new •trial made upon the minutes.
    
      
      Charles F. Brown, for the appellant.
    
      A. H. F. Seeger [Abram F. Servin with him on the brief], for the respondent.
   Hirschberg, P. J.:

The plaintiff’s judgment is for the death of her decedent, alleged to have been caused by the defendant’s negligence as master, the liability being predicated upon section 42a of the Railroad Law (Laws of 1890, chap. 565, added by Laws of 1906, chap. 657).

The deceased was a third-rail patrolman and had been in the defendant’s employ about twenty days prior to his death. The defendant had a rule or long-established custom which employees were instructed to follow, that they should work in pairs, one watching for approaching trains while the other was working. Their duties were to patrol the road and inspect the third rail, and if they found minor defects, such as a bolt loose or out, they should repair the condition, while if they found a more serious defect it would be their duty to report it to the foreman who would send the repair gang to remedy it. Under this custom and requirement, but one of the two worked at any given time and the other watched, no repairs being attempted which required the work of more than one man, and consequently the one who was working was always protected from injury if the other performed his-duty. The injury apprehended was such, of course, as was not incident to the inherent dangers of the third rail, and in addition to the watch kept by the fellow-servant" there was another rule or long-established custom understood by the engineers as being a duty required of them, that they also should keep a vigilant outlook for men working upon the track and signal to them the approach of the train by their whistles, continued until the track was clear.

The determination of which of the two patrolmen should work and which one watch at a given time, or in making a repair, was left to the men themselves, and it seems to have been their custom to alternate in working and watching. On the day of the accident the plaintiff’s intestate was working with a fellow-patrolman named Flynn. The evidence sufficiently establishes the fact that the deceased was working and Flynn watching at the time. A train approached, warning of which was not conveyed to the deceased by liis fellow-workman Flynn. The deceased was not seen by the engineer of the train and accordingly no whistle was blown, but the recovery has not been predicated solely upon his negligence, if any, but rests upon the negligence of the fellow-workman acting at the time as watchman in not giving the required signal, which negligence has been held chargeable to the defendant under the provisions of the statute referred to.

The relevant parts of section 42a of the Railroad Law are as fol: lows : “ §42-a. In all actions against a railroad corporation, foreign or domestic, doing business in this State, or against a receiver thereof, for personal injury to, or death resulting from personal injury of any person, while in the employment of such corporation, or receiver, arising from the negligence of such corporation or receiver or of any of its or his officers or employees, every employee, or his legal representatives, shall have the same rights and remedies for an injury, or for death, suffered by him, from the act or omission of such corporation or receiver or of its or his officers or employees, as are now allowed by law, and, in addition to the liability now existing by law, 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, or in the service of a receiver thereof, who are entrusted by'sueh corporation or receiver, with the authority of superintendence, control or command of other persons in the employment of such corporation or receiver, or with the authority to direct or control any other employee in the performance of the duty of such employee, or who have, as a part of their duty, for the time being, physical control or direction of the movement of a signal; switch, locomotive engine, car, train or telegraph office, are vice-principals of such corporation or receiver, and are not fellow-servants of such injured or deceased employee.”

At the time of the trial the case of Schradin v. N. Y. C. & H. R. R. R. Co. (124 App. Div. 705) had been decided and affirmed by the Court of Appeals (194 N. Y. 534). The opinions at the Appellate Division were-devoted to a consideration of the question whether the claim of liability under the statute in question was set forth in the complaint, and the affirmance in the Court, of Appeals appears to have been based upon the determination in favor of the plaintiff of the question of the constitutionality of the law. Since that case was decided, however, the Court of Appeals has decided the case of Hallock v. New York, O. & W. R. Co. (197 N. Y. 450) and- has therein held that where workmen are engaged in common and similar work, as in the case at bar, the one watching as an incident to the work does not become a vice-principal of the company for the time being. f The operation of the statute is' expressly limited by that case to such employees of the road whose special or sole functions are to give warning, and not to those upon whom such duty devolves only as an incident to their work. The court said,(pp. 456, 457): “ In the case of Schradin v. N. Y. C. & H. R. R. R. Co. (124 App. Div. 705; affd. without opinion, 194 27. Y. 534) the negligence charged was that of the engineer running the train with which the deceased was killed, and also that of a watchman specially detailed to warn, by a megaphone, the deceased and his fellow-workmen who were employed in erecting electric appliances along the track, of danger from approaching trains. 27o point was raised by the defendant that the watchman was not in charge of a signal. It may very well be, however, that had it been raised it would have been overruled, and we would have held an employee, whose special or sole function it was to give warning and notice to persons working, was in charge of a signal within the spirit of the statute, even though a mechanical device was not used. But the statute cannot be extendedlo as to include cases where the notice or information or warning conveyed by an employee to another employee is a mere incident of the employeds duty. In the movement of the cars, in the making up of trains and the distribution of cars when the train has arrived at its destination, numberless notices, warnings or signals, if they are to be called such, must be given by one trainman to the others, and often finally to. the conductor. Errors or negligence in these respects, unfortunately, are Inost common causes of injuries to employees in the movement of "railroads. If the Legislature had intended to make a .railroad company liable in all such cases for injuries to its employees occasioned by the negligence of coemployees, the intent would have been very readily expressed "by simple and clear language, while the present statute seems, on the contrary, to plainly confine liability for such injuries solely to negligence on the part of certain specified employees. We are of opinion, therefore, that the defendant was not liable for the negligence of the rear brakeman, if such negligence there was.”

It follows that the judgment and order should be reversed.

Woodward, Thomas, Rich and Carr, JJ., concurred.

Judgment and order reversed and n'ew trial granted, costs to abide the event.  