#### Sarah J. Hutchins, as Administratrix, etc., of William H. Hutchins, Deceased, Appellant, *v.*The Rutland Railroad Company, Respondent.

Third Department,

July 1, 1914

Railroad — master and servant — negligence — death of employee while riding on work car—• evidence — negligence of engineer of work car — contributory negligence.

In an action for the death of an employee of a railroad company it appeared that the plaintiff’s intestate mounted a work car equipped with a derrick or crane while it was being moved under its own power to a point about *144300 feet distant at the rate of two or three miles per hour, and that the engineer not knowing of the employee’s position upon the ear turned the boom of the derrick around, killing such employee. It did not appear that there was any general custom of using this car for carrying employees, or that the engineer had any reason to anticipate that there was any one in a position to be injured by the changing of the boom.

*Held,*that there was no evidence justifying a finding of negligence on the part of the engineer as the *alter ego*of the defendant;

That the plaintiff’s intestate was guilty of contributory negligence, as a matter of law, in climbing onto the car.

Howard, J., dissented.

Appeal by the plaintiff, Sarah J. Hutchins, as administratrix, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Franklin on the 25th day of November, 1913, upon the dismissal of the complaint by direction of the court at the close of the case upon a trial before the court and a jury at the Franklin Trial Term, and also from an order entered in said clerk’s office on the same day setting aside the special findings of the jury and the assessment of damages.

*Moore & Cooney [A. B. Cooney*of counsel], for the appellant.

*Cantwell & Cantwell*[ *John M. Cantwell*and *E. W. Lawrence*of counsel], for the respondent.

Woodward, J.:

Plaintiff’s intestate was killed while employed by the defendant in its yards at Malone on the 3d day of November, 1911. The defendant owned and operated a work car, equipped with a derrick or crane used with a shovel or scoop in removing coal from cars and doing other work of that character. The engine controlling the operation of the crane was contained in a house, mounted upon a revolving disk, and the boom of the crane ran out from the revolving disk at an angle and reached a distance of about 35 feet from the house where the operator was located. Besides the derrick equipment, the car was geared to the engine so that it could be moved with its own power from place to place in the yard, but its movements were very slow, proceeding only at the rate of two or three miles an hour. On the day of the accident, which resulted in the death of the plain*145tiff’s intestate, this work car had been cleaning up some cinders, and after this work was done the conductor ordered the car placed upon another switch, where a like piece of work was to be done. The engineer started the car down the track toward the switch, and plaintiff’s intestate and a man by the name of Jones, who were standing at the time to the westward of the car and some distance away, ran and climbed upon the front end of the car, standing upon the housing block which covers the ends of the shafts of the wheels, and leaned over the platform of the car, intending to ride to the point where the switches were to he turned, some 300 feet away. Jones left the car at a point intermediate the last switch to place a third switch, and soon after he had left the car the engineer, who testifies that he did not know that plaintiff’s intestate was upon the car, turned the boom of the derrick around toward the forward end of the car, and plaintiff’s intestate was caught between the swinging boom and the side of the car and instantly killed.

The engineer, who was called in behalf of the plaintiff, testified that when he started to move the car the plaintiff’s intestate was to the west and some distance away, and that he did not know that the plaintiff’s intestate was upon the car, and there does not appear to have been any reason why the decedent should have been upon the car, for it was not moving any faster than he could walk, and was going east only about 300 feet. There was no evidence from which it could be fairly inferred that there was any general custom of using this car for carrying the workers in the manner in which the plaintiff’s intestate was riding at the time. There is no evidence that the car as equipped was not a proper car for the work. There is no evidence that it was out of order or that the engineer had any reason to anticipate that there was any one in a position to be injured by the changing of the location of the boom, and as the only window in the engine house looked out in the direction of the boom, and the car was moving to the eastward, it was the natural and prudent thing, no doubt, to swing the apparatus around in such a way that the engineer would be looking in the direction he was running the car. Under such circum*146stances there was clearly no evidence which could justify the jury in finding negligence on the part of the engineer as the *alter ego*of the defendant, and the special verdict of the jury finding negligence on the part of the engineer was properly setsaside.

It seems equally clear that the plaintiff’s intestate was guilty of negligence as a matter of law in climbing on to the car and riding in the manner testified to by Jones. There was no occasion for it; there was a perfectly safe way to proceed to the switch, and the movement of the car, being at the rate of only two or three miles an hour, no consideration of economy in time could justify taking the chances. The car was not designed for carrying people; it was equipped for special work, the machinery being operated by a single man, and if plaintiff’s intestate climbed onto the side of this car, giving no notice of his presence, the defendant ought not to be charged with damages, for it owed the decedent no duty under such circumstances. It was not negligent for the defendant’s engineer to swing the derrick unless he had reason to expect that some one would be in a position to be injured, and the evidence in this case does not warrant any such conclusion.

The judgment and orders appealed from should be affirmed, with costs.

All concurred, except Howard, J., dissenting.

Judgment and orders affirmed, with costs.