#### Jennie A. Hildebrant, as Executrix, etc., of Andrew Hildebrant, Deceased, Respondent, *v.*Lehigh Valley Railroad Company, Appellant.

Fourth Department,

July 8, 1913.

Railroad — negligence — death of freight conductor caught between drawheads — negligence of engineer as vice-principal — Railroad Law, section 64 — superior rank of one vice-principal over another.

In an action for the death of plaintiff’s testator, a freight conductor employed by the defendant, it appeared that while the intestate was standing in front of a coupler fixing it, with a brakeman on either side of him and all facing towards the train, the engineer backed the locomotive over the intervening space of about twenty feet and caught the testator between the drawheads, fatally injuring him.

Evidence examined, and *held,*that the death of the testator was caused by the negligence of the engineer who was, as to the testator, a vice-principal of the defendant under section 64 of the Railroad Law, and that a judgment in favor of the plaintiff should be affirmed.

One who is a vice-principal may recover from his employer for the negligence of another vice-principal, although the first vice-principal may be of superior rank and in control of the second vice-principal.

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 clerk of the county of Ontario on the 10th day of October, 1912, upon the verdict of a jury for $10,916.08, and also from an order entered in said office on the 15th day of October, 1912, denying defendant’s motion for a new trial made upon the minutes.

*Howard Cobb,*for the appellant.

*Merwin W. Lay,*for the respondent.

Robson, J.:

Plaintiff’s testator was, at the time of receiving the injuries which resulted in his death, a freight conductor in defendant’s service. Shortly after midnight on the lfth day of February, 1910, he, together with an engineer, fireman and two brakemen, forming a freight train crew, was directed to take from defendant’s Manchester yards an east-bound freight train, *829which appears to have been then completely made up with the exception that it still lacked the locomotive. The engineer then in charge of a locomotive, to the operation of which he was assigned on this occasion, backed it down upon the front end of the train of cars for the purpose of coupling it thereto. The coupling, however, did not “make” on this first attempt, and the engineer, having been advised of that fact by the deceased, at the latter’s suggestion moved the locomotive forward from fifteen to twenty feet and stopped. After the locomotive moved forward the two brakemen found on examining the coupling device on the front end of the forward car that it did not operate properly, due, as it appeared, not to any actual defect in the coupler itself, but to a temporary obstruction of the usual free movement of its mechanism, which apparently resulted ■ from the severe weather conditions then obtaining. The two brakemen, not at once succeeding in their attempts to remedy this temporary difficulty, the deceased, who had meanwhile joined them, tried to adjust the coupler. While thus engaged, and being directly in front of the coupler on which he was working, one brakeman being on either side of him, and all facing towards the train and away from the locomotive, the engineer backed the locomotive over the intervening space to the train end, with the result that intestate was caught between the drawheads and fatally injured.

The court instructed the jury in effect that if they found that this movement of the locomotive by the engineer was not made in the exercise by him of reasonable care and prudence, then negligence on the part of defendant causing the injury had been proved.

It is urged by appellant that this statement of the law of the case, to which sufficient exception was taken on the trial, is erroneous. In support of this position it is claimed, as stated in the reply brief for appellant, “.That one who is a vice-principal cannot recover from the employer for the negligence of another vice-principal where the injured vice-principal is of superior rank and in control of the other vice-principal.” He admits, that, in cases where the statute hereinafter referred to applies, a vice-principal, injured solely by the negligence of another vice-principal of the employer of equal authority with, and not sub*830ject to the control of the former, would have a cause of action against the employer. The authorities seem to so hold. *(Kent*v. *Jamestown Street R. Co.,*205 N. Y. 361; *Simons*v. *Brooklyn Heights R. R. Co.,*142 App. Div. 36; *Gorman*v. *Brooklyn, Queens County & S. R. R. Co.,*147 id. 21.) Why the negligent employee in the first class of cases, the particular act of negligence not resulting from nor connected with any superior authority or control exercised over him at the time by the injured employee, should not be considered, under the statute, as a vice-principal of the employer, if the negligent employee in the second class is made by the statute a vice-principal, is not clear. The statute (Railroad Law [Gen. Laws, chap. 39; Laws of 1890, chap. 565], § 42a, added by Laws of 1906, chap. 657; now Railroad Law [Consol. Laws, chap. 49; Laws of 1910, chap. 481], § 64) does not in terms indicate any such distinction in the two classes of cases. One class of employees of railroad corporations who are by the act separately designated as vice-principals of the employer are those “ who have, as a part of their duty, for the time being, physical control or direction of the movement of a * * * locomotive engine; ” and, as the statute further provides, in all actions against such employer for personal injury to or death resulting from personal injury of any person while in its employment due to the negligence of its employees of the designated class such negligent employees “are not fellow-servants of such injured or deceased employee.” No suggestion is made in the terms of this part of the statute at least that the liability of the employer in such case is to be limited or affected by a determination of the relative authority intrusted by it to the negligent and to the injured employee. This question was fully and satisfactorily discussed in the opinion of Thomas, J., in the case of *Simons*v. *Brooklyn Heights R. R. Co. (supra),*and our conclusion that the engineer in this case was as to the deceased the vice-principal of the defendant may well be based on that part of his opinion. It also receives incidental support in the0 case of *Eagen*v. *Buffalo Union Terminal R. R. Co.*(200 N. Y. 478). In that case a conductor employed by defendant was killed while attempting to couple to the train of which he had apparent charge one of the devices used by his employer in *831its business. The trial court in that case charged that both the engineer, who was operating the engine, and the conductor’s helper, one Donahue, who stood at the side of the train to direct by signal the engineer as to the movement of the train, were each vice-principals of the common employer for whose acts the employer would be responsible if the negligence of either was the sole cause of the conductor’s injury. The judgment in favor of the plaintiff was reversed by the Court of Appeals apparently on the sole ground that the court erred in charging the jury that the helper, Donahue, was a vice-principal of the employer. By inference, therefore, it would appear that the charge of the court that the engineer was, under the statute, as to the conductor a vice-principal of the employer was approved. The Supreme Court of Indiana has also held that a liability may arise under the somewhat similar statute of that State for an injury to a conductor through the negligence of an engineer in charge of the locomotive upon the same train, notwithstanding a rule of the company making the conductor in some respects the superior servant. *(Pittsburg, C., C. & St. L. R. R. Co.*v. *Collins,*168 Ind. 467.) Appellant’s counsel cites no case in this State which, as it now appears to us, is in conflict with our conclusion. The cases from other jurisdictions, to which attention is called in the brief, in each instance involved a consideration of particular statutes materially differing both in phraseology and substantive provisions from that of this State.

None of the other exceptions seem to be of sufficient importance to call for a particular reference to them. The evidence warranted a finding by the jury that deceased came to his death by reason of injuries caused by the negligence of the engineer; and that no negligence of deceased contributed to that injury. We cannot say that the verdict was excessive under the circumstances.

The judgment and order should be affirmed, with costs.

All concurred.

Judgment and order affirmed, with costs.